A number of complications arise when sellers and buyers are not in the country, such as jurisdictional issues, for example. Generally, a document can be signed outside of South Africa and still be valid; however, if the agreement or document is to be relied upon for court proceedings or for use in other areas like the Deeds Office, a specific process needs to be followed when signing (executing) such a document in order for it to be accepted.
Authentication
In terms of High Court Rule 63, any documents executed in any place outside of South Africa shall be deemed to be sufficiently authenticated for the purpose of use in South Africa if duly authenticated at such foreign place by the signature and seal of office of:
- The head of the South African diplomatic/consular mission; or
- A person in the administrative or professional division of the public service serving as a South African diplomatic consular abroad; or
- Any government authority of such foreign country charged with the authentication of documents;
- The consul-general, consul, vice-consul or consular agent of the United Kingdom in that foreign country; or
- A notary public in the United Kingdom of Great Britain and Northern Ireland, or in Zimbabwe, Lesotho, Botswana, or Swaziland.
Authentication: Apostille
An apostille is simply the name for a specialised certificate issued by the Secretary of State. The apostille is attached to the original document to verify that it is legitimate and authentic so that it will be accepted in one of the other countries that are members of the Hague Apostille Convention. If the convention applies between two countries, such an apostille is sufficient to certify a document’s validity and removes the need for double certification by the original country and then by the receiving country.
Authentication: Commissioner of Oaths
In terms of the Justice of the Peace and Commissioner of Oaths Act 116 of 1963, a Commissioner of Oaths that has been designated by the High Court may administer oaths or affirmations in the ordinary course outside South Africa and shall be required to place their seal, stamp, or certification thereon. Such authenticated affidavit, affirmation, or solemn or attested declaration will be of the same force and effect as if made in front of a Commissioner of Oaths in South Africa. Attorneys that are overseas who are on the South African roll would be able to assist in this regard.
Manner of Execution
The colour of ink to be used varies from country to country; for example, in New Zealand, blue ink is commonly used in legal documents. If a document is intended for use in South Africa, black ink should be used, especially if the documents are intended for use in the Deeds Office. Each page should be initialled in the bottom right-hand corner, except for the signature page, which need not be initialled as the full signature would appear on such a page.
Before Travelling or Emigrating – Sign a Power of Attorney
If you have a client that is emigrating or will be overseas when the transfer documents or any other documents or agreements need to be signed, have they considered signing a power of attorney before leaving South Africa, authorising someone to sign the transfer documents on their behalf in order to prevent delays?
Please note that a power of attorney needs to be signed by two witnesses or by a Commissioner of Oaths. However, if the parties granting a power of attorney are married to each other in community of property, then the power of attorney must be witnessed by two witnesses and not a Commissioner of Oaths.
