Notarial Certificate for Notarial Copies of Document

When you need to have documents signed or copied in South Africa for use outside South Africa, you will need to go through a process of having the documents authenticated. The nature of the authentication process will depend on the country in which the documents will be used.

The Notarization of a Document is Not Complete Without a Proper Notarial Certificate

The notarial certificate is a written statement, signed and sealed by the notary public, certifying the facts of a notarial act. For all notarial acts requiring a certificate, a notary must complete a notary certificate.

The notary certificate may be typed or printed on the document itself or on an attachment typically stapled to the documents left margin following the signature page.

The two most common notarial acts a notary will be asked to perform are administering oaths and taking acknowledgments. Oaths and acknowledgments are two different notarial acts, therefore each will require its own certificate wording.

Requirements for Authentication

1. Documents must be properly authenticated to ensure that they are legally valid for use either within South Africa or abroad.

2. The country in which the documents will be used will determine the authentication process required.

3. The process of authentication is simplified where the country is a party to The Hague Convention of 5 October 1961 (which abolishes the requirement of diplomatic and consular legalization for public documents originating in one Convention country for use in another).

Documents issued in a Convention country which have been certified by a Convention Apostille are entitled to recognition in any other Convention country without any further authentication.

Public documents include:

• Documents emanating from an authority or an official connected with the courts or tribunals, including those emanating from a public prosecutor, a clerk or a process server;

• Administrative and notarial documents; and

• Official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official, and notarial authentications of signatures.

If you have a document which you want legalized for use in another Convention country, the Convention certification called an Apostille must be affixed to the document by a competent authority. The Apostille is a pre-printed form prescribed by the Convention.

4. Documents are authenticated with a Certificate of Authentication and/or an Apostille Certificate.

5. Rule 63 of The Rules of the High Court of South Africa regulates the requirements for authentication where documents are signed / executed outside South Africa for use within South Africa.

Apostille

A relatively simple process (“the Apostille Process”) can be followed when the documents are intended to be used in a country that is a party to the Hague Convention dated 5th October 1961. A list of participant countries is available at the link below:

http://www.hcch.net/index_en.php?act=states.listing. The Apostille Process is as follows:

1. The original documents must be taken to a South African Notary Public and must be signed or copied in his/her presence. The Notary will then attach an authentication certificate to the signed document or copy which will include the Notary’s signature, stamp and seal.

2. The Notary will then send the authenticated documents to the High Court in the area in which he/she practices and the Registrar of the High Court will sign an Apostille Certificate authenticating the Notary’s signature.

Once the Notary’s certificate and the Apostille Certificate are attached to the signed or copied document, the document is ready to be used abroad.

Authentication

The Apostille Process cannot be used where the country in which the documents will be used is not party to the Hague Convention. In this instance the process is more complicated:

1. The original documents must be taken to a South African Notary Public and must be signed or copied in his/her presence. The Notary will then attach an authentication certificate to the signed document or copy which will include the Notary’s signature, stamp and seal.

2. The Notary will then send the authenticated documents to the High Court in the area in which he/she practices and the Registrar of the High Court will sign an authentication certificate authenticating the Notary’s signature, instead of an apostille.

3. The documents must then be sent to the legalisation section at The Department of International Relations and Co-operation (DIRCO) in Pretoria, where they will authenticate the signature of the Registrar.

4. Finally, the documents must be sent to the embassy or consulate of the country in which they are intended to be used for their final authentication.

Once all four steps have been completed the documents are ready to be used abroad.

The traditional common law maxim acta probant sese ipsa (documents prove themselves) applies to the South African legal system. Furthermore, legislation prescribes the formalities for the legally valid execution (signing) and attestation (witnessing) of documentation when signed in South Africa.

However, it stands to reason that the said maxim cannot be applied in respect of a document which has been executed abroad for use in South Africa, without grossly and perhaps even unfairly, burdening the person bearing the responsibility of judging the authenticity of the document merely on sight value.

Where documents are signed or copied outside South Africa and are to be used inside South Africa, the Apostille Process is acceptable, alternatively any authentication which complies with our High Court Rule 63 should suffice.

In order to circumvent this problem, the High Court Act 59 of 1959 prescribes in Rule 63 of the High Court Rules of Court the formalities to be complied with regarding documents which have been signed outside of South Africa.

Signing/Executing of Documents Outside South Africa for Use Within South Africa:

Rule 63 of the Uniform Rules of the High Court regulates the requirements for authentication. In terms of Rule 63 a document is sufficiently authenticated by means of a Certificate of Authentication which bears the signature and seal of office of:

i. a head of a South African diplomatic or consular mission or a person in the administrative or professional division of the public service serving at a South African diplomatic, consular or trade office abroad; or

ii. a consul-general, consul, vice-consul or consular agent of the United Kingdom or any person acting in any of the aforementioned capacities or a pro-consul of the United Kingdom; or

iii. any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or

iv. any person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (i), (ii) or (iii) or of any diplomatic or consular officer of such foreign country in the Republic to be duly authorised to authenticate such document under the law of that foreign country; or

v. a Notary Public in the:

- United Kingdom of Great Britain and Northern Ireland (England or Ireland);
- Zimbabwe;
- Lesotho;
- Botswana;
- Swaziland; or
vi. a Commissioner Officer of the South African Defence Force as defined in section 1 of the Defence Act, 1957 (Act 4 of 1957) in the case of a document executed by any person on active service.