Notaries public play a vital role in our legal system by providing specialised services essential for various legal transactions.
To become a notary public in South Africa, one must first qualify as an attorney. This involves:
- obtaining a law degree from a recognised tertiary education institution, like a university,
- completing a period of articles (practical legal training), and
- being admitted on application to the High Court, as an attorney of the High Court of South Africa.
Once admitted, the attorney must pass the notarial admission examination and apply to the High Court to be enrolled as a notary public.
In essence, all notaries are attorneys, but not all attorneys are notaries.
This additional qualification empowers attorneys to deal with legal tasks requiring a high degree of trust, legal expertise, and adherence to strict professional and ethical standards.
Functions of a Notary Public
A notary public is authorised to perform certain legal roles and formalities, including:-
- Authentication of Documents for International Use
A notary public verifies:
- the authenticity of signatures,
- the identity of the individuals signing documents, and
- That signatories understand and sign documents willingly.
- Certification of Documents for Use in a Foreign Country
Ordinary commissioners of oaths are not recognised by most foreign jurisdictions. In contrast, documents certified by a notary public are more readily accepted internationally due to the elevated level of trust placed in notaries.
In some instances, international treaties such as the Hauge Convention ensure that member countries accept notarially certified documents from each other.
- Registration of Antenuptial contracts (also known as Prenuptial Agreements)
An antenuptial contract sets out the financial and property arrangements between two individuals intending to marry. A notary public:
- Consults with the parties to ensure informed decision making,
- Drafts the agreement in compliance with legal requirements,
- Attests the contract (ensuring valid execution), and
- Registers it at the Deeds Registry
The Registrar of Deeds relies on the notary’s attestation as confirmation that all legal requirements have been met.
- Drafting, Attestation and Registration of Notarial Deeds Related to Property Transactions
Only a notary public may attest and register certain notarial deeds including:
- Cessions of exclusive use areas in sectional tile schemes,
- Personal Servitudes (e.g. usufructs, habitatio, usus),
- Praedial Servitudes (e.g. rights of way; road servitudes).
- Long term leases
- Registration of Notarial Bonds over Movable Assets
Notarial bonds, similar to mortgage bonds, are registered over movable assets (e.g. machinery, tools, equipment) rather than immovable property. These bonds secure a debtor’s obligation to a creditor, using the movable asset as collateral.
Conclusion
Notaries public are specialised attorneys with the authority and expertise to attend to specific legal transactions. If you require assistance with any of the matters outlined above, it is essential to consult a notary public rather than a general legal practitioner. Using someone unqualified could result in documents that are unenforceable or invalid, especially in cross-border transactions or agreements, such as antenuptial contracts.
Written by Karen Britz