Legal documents are often signed for important personal, commercial and international purposes. In some situations, an ordinary signature or certified copy is not enough. The document may need to be prepared, witnessed, certified or authenticated by a notary public.
Notarial requirements can be confusing because the correct process depends on the type of document, the transaction involved and the country or organisation where the document will be used.
Obtaining advice before signing can prevent a document from being rejected and help avoid unnecessary delays or additional costs.
What is a notary public?
A notary public is an admitted attorney who has completed additional professional requirements and is authorised to perform specialised notarial work.
Notaries are responsible for preparing and executing certain documents that require additional legal formality. They may also verify signatures, authenticate copies and certify documents intended for use outside South Africa.
A notary must act carefully and impartially when confirming the identity of a signatory, witnessing a signature or recording a legal transaction.
What is a notarial deed?
A notarial deed is a formal legal document prepared and executed before a notary public.
The notary confirms the identities of the parties, explains the nature and consequences of the document and supervises its execution. Certain notarial deeds must also be registered in the Deeds Registry before they become fully effective against third parties.
Not every document signed before a notary is a notarial deed. Some documents require only the notary’s certification, authentication or witnessing of a signature.
Documents that commonly require notarial services
Antenuptial contracts
An antenuptial contract is one of the most common documents executed before a notary public in South Africa.
Couples who intend to marry out of community of property must generally conclude their antenuptial contract before the marriage. The agreement records whether the accrual system will apply and may identify commencement values or assets that are excluded from accrual.
The notary explains the legal consequences of the available matrimonial property systems, prepares the contract and supervises its execution.
After the contract has been signed, it must be registered in the appropriate Deeds Registry within the prescribed period.
Because the agreement must be completed before the marriage, couples should consult a notary well before their wedding date.
Notarial bonds
A notarial bond is a form of security registered over movable property.
Unlike a mortgage bond, which relates to immovable property such as land or a house, a notarial bond may cover movable assets. These can include machinery, equipment, vehicles, stock or other business assets.
There are different forms of notarial bonds, including general and special notarial bonds. The legal effect and level of security provided depend on the type of bond and whether the assets are properly described.
Notarial bonds are frequently used in commercial financing arrangements and must be prepared and registered by appropriately qualified legal professionals.
Servitudes
A servitude gives one person or property a limited legal right over another person’s property.
Examples may include:
- A right of way across neighbouring land
- A right to install or maintain services
- A right relating to water, access or drainage
- A restriction on how a property may be used
- A personal right to occupy or use property
Certain servitudes are created through a notarial deed and registered in the Deeds Registry.
The wording must accurately describe the properties, the parties and the rights being created. Poorly drafted servitudes can cause uncertainty, affect future property transfers or lead to disputes between owners.
Long-term leases
Some long-term leases may require notarial execution and registration to provide appropriate protection against third parties.
Registration may be particularly important where a tenant requires secure rights that will remain enforceable if the property is sold or transferred.
The correct process depends on the duration and terms of the lease, the nature of the property and the rights the parties intend to create.
Legal advice should be obtained before concluding a significant long-term lease.
Authentication of signatures
A notary may be asked to confirm that a particular person signed a document in the notary’s presence.
This service may be required for documents such as:
- Powers of attorney
- Commercial contracts
- Consent documents
- Affidavits intended for foreign use
- Property-related documents
- Company resolutions
- Applications submitted to foreign authorities
The signatory will generally need to appear personally before the notary and provide acceptable proof of identity.
The document should usually not be signed in advance, as the notary may need to witness the signature directly.
Certified copies for international use
A notary may prepare a certified copy of an original document for use outside South Africa.
The notary examines the original and certifies that the copy is a true reproduction of it. This is different from ordinary certification by a commissioner of oaths because a foreign authority may specifically require notarial certification.
Documents commonly presented for this purpose may include:
- Passports
- Identity documents
- Academic qualifications
- Company records
- Court orders
- Contracts
- Powers of attorney
- Professional certificates
- Personal status documents
The receiving country or institution determines what type of certification it will accept. DIRCO notes that acceptance remains at the discretion of the foreign state, even where a notary has certified a copy.
Powers of attorney for use abroad
A power of attorney authorises another person to act on someone’s behalf.
Where the authority will be used in another country, the document may need to be signed before a notary and then apostilled or authenticated.
Examples include powers of attorney relating to:
- The sale or purchase of foreign property
- International estate administration
- Company or banking transactions
- Immigration matters
- Court proceedings
- The collection of foreign documents
The wording and formalities should be checked against the requirements of the country where the document will be used.
Documents required for foreign property transactions
People buying, selling or inheriting property outside South Africa may need documents prepared or authenticated by a South African notary.
Foreign conveyancers, banks or government authorities may request:
- Notarised identity documents
- Powers of attorney
- Declarations of marital status
- Marriage certificates
- Company resolutions
- Proof of address
- Estate documents
- Certified signatures
The foreign legal adviser should confirm the exact requirements before the documents are prepared.
Notarial copies and certificates
A notary may issue a formal certificate confirming facts personally verified by the notary.
Depending on the purpose, the certificate may confirm:
- The identity of a signatory
- The authenticity of a signature
- That a copy corresponds with an original
- That a person appeared before the notary
- That a document was executed in the required manner
The certificate does not necessarily confirm that every statement contained in the document is true. Its effect depends on what the notary has specifically certified.
What is the difference between a notary public and a commissioner of oaths?
A commissioner of oaths can perform services such as administering oaths, taking affidavits and certifying copies of original documents.
A notary public can perform additional specialised functions, including executing notarial deeds and authenticating certain documents and signatures for international use.
A standard certified copy may be sufficient for a local administrative purpose. However, a foreign institution or a particular legal transaction may require notarisation.
Using the incorrect certification process can result in the document being rejected.
What is an apostille?
An apostille is a certificate used to verify the origin of a public document for use in another country that participates in the Hague Apostille Convention.
The apostille confirms the authenticity of the signature, seal or official capacity appearing on the document. It does not confirm that the contents of the underlying document are true.
South African documents intended for use abroad may need an apostille from the appropriate authority, depending on the document and destination country.
DIRCO explains that public documents used outside South Africa may be legalised through either an Apostille Certificate or a Certificate of Authentication, depending on whether the receiving country participates in the Apostille Convention.
What is authentication?
Authentication is another process used to verify the signature and seal appearing on an official document.
It is generally used where the destination country is not a party to the Apostille Convention.
The process may involve several stages, such as:
- Notarial verification of the document or signature
- Authentication by the Registrar of the High Court
- Authentication through DIRCO
- Further legalisation by the relevant embassy or consulate
The exact steps depend on the document and the country where it will be presented.
DIRCO describes authentication as the process through which the signature and seal on an official document are verified.
Does every foreign document need to be notarised first?
No. The correct process depends on the type of document.
Some original public documents can be submitted directly to DIRCO or another relevant authority, while private documents may first need to be notarised.
For example, DIRCO indicates that certain original documents issued by the Department of Home Affairs may be submitted directly for legalisation. Police-clearance certificates and educational qualifications follow their own verification processes.
Private contracts, employment contracts, settlement agreements and similar documents may require notarial witnessing or certification before High Court authentication or apostille procedures can be completed.
It is important not to assume that every document follows the same route.
Apostille and authentication are not the same as notarisation
These terms are often used interchangeably, but they refer to different processes.
Notarisation
A notary verifies a signature, certifies a copy or executes a notarial document.
Apostille
An authorised public authority certifies the origin of a public document for use in another Apostille Convention country.
Authentication
The relevant authorities verify a document for use in a country that does not follow the apostille process.
A document may require more than one of these steps.
What should you bring to a notarial appointment?
The exact requirements will depend on the service, but clients are commonly asked to provide:
- The original document
- A valid identity document or passport
- Proof of residential address
- Details of the country where the document will be used
- Written requirements from the receiving authority
- Supporting company, trust or estate documents
- Marriage or divorce documents where relevant
- The unsigned document where the signature must be witnessed
Where a person acts for a company or trust, the notary may also require resolutions, registration documents and proof of authority.
Providing complete information at the beginning can prevent delays.
Why should documents not be signed beforehand?
Where a notary must witness or authenticate a signature, the person should normally sign in the notary’s presence.
Signing beforehand may prevent the notary from providing the required certificate.
If a document has already been signed, the notary should be consulted before any further steps are taken. In some cases, the person may be able to acknowledge the signature before the notary, while in others the document may need to be signed again.
Common causes of delays or rejection
Documents may be delayed or rejected because:
- The wrong certification process was followed
- The document was signed before the appointment
- The person’s name differs across supporting documents
- The original document is unavailable
- The document has expired or is too old
- The notary was not given the destination country
- The receiving authority requires a specific form
- A translation was completed by an unacceptable translator
- The document requires prior verification by another institution
- The incorrect authority issued the apostille or authentication
- Company or trust authority documents are incomplete
Clients should obtain written requirements from the foreign authority wherever possible.
Can a South African notary certify a translation?
Documents in another language may require a sworn translation or a translation completed under a process accepted by the receiving authority.
A notary may be involved in certifying supporting affidavits, signatures or copies, but the notary does not automatically verify the accuracy of a language translation unless appropriately qualified and instructed to do so.
The destination country should confirm whether it requires:
- A sworn translation
- A notarised translation
- An apostilled translator’s affidavit
- Legalisation of both the original and translation
Translation and legalisation requirements should be confirmed before the work begins.
Why professional notarial assistance matters
International and property-related documents are often rejected because the wrong procedure was followed rather than because the underlying transaction was invalid.
A notary can help determine:
- Whether notarisation is necessary
- Whether the original or a certified copy is required
- Who must sign the document
- Whether an apostille or authentication is needed
- Which authority should legalise the document
- Whether supporting documents are required
- Whether the document must be registered
De Wet – Van der Watt Inc. assists individuals, families and businesses with notarial documents and related legalisation procedures.
Do you need a document notarised?
De Wet – Van der Watt Inc. provides professional assistance with notarial agreements, signature authentication, certified copies, powers of attorney and documents intended for use abroad.
Learn more about our Notarial Services practice area or contact the firm to confirm the requirements for your document.
Disclaimer: This article provides general information and does not constitute legal advice. Notarial, apostille and authentication requirements differ according to the document, transaction and receiving country. Requirements may change, and professional advice should be obtained before signing or submitting any document.