General

POA question

My interpretation of the rules for a proper signature of Powers of Attorney for acceptance in a deeds registry (both in South Africa and Namibia) are as follows:

  1. A PA signed internally must by virtue of the Deeds Registries Act 47 of 1937 provisions also be signed by 2 witnesses, alternatively a Commissioner of Oaths.

  2. Any document (including a PA) signed in a country which has acceded to the Hague Convention on Authentication of Foreign documents, 1961, may be authenticated by the prescribed Apostille.

  3. A PA signed in a country other than a country in 2 above must be authenticated in the way and by the officials as set out in the High Court Rules on Authentication of documents signed outside for use inside the country.

Exceptions:

  1. A document signed in a country specifically so designated in the sub rules (mostly in the British Commonwealth, with South Africa and Namibia having slight differences) of the Court Rules may be accepted if such document is an Affidavit or Solemn Declaration Affirmed before a Commissioner of Oaths.

  2. The Registrar in his/her discretion may waive the requirements for witnessing or further authentication on account of the availability of a comparable signature already filed in the registry.

The said High Court Rule includes a “Power of Attorney” in its definition of a “Document”

I have drawn PA’s in affidavit form which were then duly deposed to before a Commissioner of Oaths in a designated country. I submitted them as such for purposes of registration of transfers in the Deeds registry, without any further form of authentication. These have been accepted or rejected depending on the opinion of the 3rd examiner/Registrar at the time as to what the law and “office practice” dictate. I am of the opinion that these PA’s comply with all legal requirements and should be accepted.

I shall appreciate conveyancers’ and examiners’ comments.

Adrie van der Merwe
Fisher, Quarmby & Pfeifer

Reader Comments:

Allen West 15/03/2019:

A question with which conveyancers and examiners are confronted with is whether a document executed in Namibia for use in South Africa can be authenticated before a Notary. The answer to this question is categorically No (see also in this regard RCR 46 of 2011). A notary public may only authenticate documents executed in any of the following countries:

  • Botswana
  • The United Kingdom of Great Britain and Northern Ireland (England or Ireland)
  • Lesotho
  • Swaziland
  • Zimbabwe

In this instance, the signatories should execute the document; no attestation by witnesses is required (RCR 16 of 2003); and a notary public may authenticate the document by identifying the signatories, affixing his/her signature and seal of office to the document.

No further authentication is needed for such documents. The last paragraph of Chief Registrar’s Circular CRC 8 of 1978, dated 13 December 1978, unequivocally confirms this: “The certificate referred to in paragraph (d) of rule 63(2) does not, therefore, apply to a document authenticated by a notary public in the countries named in paragraph 63(2)(e).”

If a document has been executed in any other country than the above listed, either the procedure prescribed in Rule 63 must be followed, or the formalities prescribed by The Hague Convention of 5 October 1961 must be followed.

In view of the fact that both South Africa and Namibia are members of The Hague Convention, the authentication can take on the form of an “Apostille”.

Kevin Schaafsma 15/03/2019:

The authentication requirements for documents attested to outside of the Republic are well settled and relatively easy to understand, as pointed out by Allan West. Conveyancers should be well cautioned not to leave this up to untrained staff, as if one gets a rejection due to improper authentication and this causes a delay in effecting transfer, as it invariably will do if papers have to be re-drawn and sent overseas etc.

The conveyancer will be liable for damages, and these can be substantial if a party is unable to take occupation, or if a property stands vacant. For those not familiar with the Margalit SCA decision, I urge you to familiarise yourselves with it. Too many conveyancers leave important conveyancing work up to ill trained lay people.

Adrie van der Merwe 18/03/2019:

Attorney deposed to as an affidavit obviates the necessity for authentication by Apostille or otherwise.

John Christie 20/03/2019:

What has been overlooked here, is that rule 63 of the High Court Rules gives the Registrar a discretion to waive the authentication requirements. Unfortunately a few years ago the Registrars’ Conference effectively “abolished” this discretion on the basis, I recall, that the Registrar is not a “handwriting expert”,or something to that effect. That discretion was always exercised sparingly, and with great circumspection, and I used it on many occasions to the benefit of clients who were put of the country at the time. There are many reasons why the resolution should never have been adopted. Just one reason: why would a fraudster complicate matters by inserting a foreign country as the place of signature? I hope to elaborate on this issue later.

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