Authentication of documents

Authentication of the signature on a document is required where a document is signed in one country and the documents must then be used in another country.

A clear distinction must be made between the following:

• The authentications of documents executed in South Africa for use outside South Africa; and
• The authentications of documents executed outside South Africa for use in South Africa.

AUTHENTICATIONS OF DOCUMENTS FOR USE OUTSIDE OF THE REPUBLIC OF SOUTH AFRICA

It is important here to distinguish between two procedures namely:

• Long procedure
• Short procedure in terms of the CONVENTION FOR THE ABOLITION OF THE REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS

LONG PROCEDURE

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

• The person who signs the document must sign the document or must acknowledge his signature in the presence of the Notary whereupon the Notary must authenticate the signature of such person. The notary must sign the certificate of authentication and affix his seal of office to it.
• The notary’s signature must, In turn, be authenticated by a Magistrate or the Registrar ot the High Court in the area where he practices.
• The signature of the Magistrate or Registrar must, in turn, be authenticated by Director-General of the Department of Justice whose signature must, in turn, be authenticated by the Director-General
  of the Foreign Affairs
• Although not a formal requirement, many non-convention countries will require that their local Embassy approve and confirm the documents as having been signed in the Republic of SA

EXAMPLE OF CERTIFICATE OF AUTHENTICATION

CERTIFICATE OF AUTHENTICATION

Know all whom it may concern, Notary, practicing at in the Province of the Republic of South Africa and duly sworn and admitted as such do hereby certify that I was present on and saw who identified himself to my satisfaction by the production of identity document number issued to him by the relevant Government authority of the Republic of South Africa, the person referred to in the document attached hereto, sign and execute the document annexed hereto, marked A being General Power of Attorney granted by him in favour of and the name signed hereon is in the actual handwriting of and that the names and are the respective signatures of and who signed as witnesses In witness whereof, I, the said Notary, have signed this deed and have caused my seal of office to be affixed hereto at on the day of 2020.

QUOD ATTESTOR
NOTARY

THE NECESSARY CERTIFICATE AUTHENTICATING THE NOTARY’S

SIGNATURE IS AS FOLLOWS:

TO ALL WHOM IT MAY CONCERN

I, (Insert name & office held) do hereby certify that XY, whose signature is affixed to the certificate on the other side hereof, is a notary public, by lawful authority duly admitted and sworn, residing and practicing at in the province of and that to all acts, instruments, documents and writings, subscribed by him in that capacity, full faith and credence are given in court and thereout.

Given under my hand and seal of office at
REGISTRAR

SHORT PROCEDURE

SHORT PROCEDURE IN TERMS OF THE CONVENTION FOR THE ABOLITION OF THE REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS

WHEN IS IT APPLICABLE?

The Convention may be used if the country where the public document is signed as well as the country where the documents is to be used are both Convention countries.

When the Rule 63 procedure is more simplified than the Convention procedure, the latter may not be insisted upon.

This Convention is only applicable to public documents which is defined as:

• • • Documents originating from a government or official associated with the courts or tribunal of
      the State including those originating from a public prosecutor, clerk of the court or sheriff;
    • Administrative documents;
    • Notarial deeds; and
    • Official certificate attached to documents which were signed by person in their private capacities, such as official certificate to confirm the registration of a document or the fact that it existed on a certain date and official and notarial authentication of signatures.

The Convention is not applicable to:

• • • Documents executed by diplomatic or consular agents; and
    • Administrative documents dealing directly with commercial or customs activities.

WHICH COUNTRIES DOES IT APPLY TO?

Since the Convention may still afford membership to states, and membership may be terminated, the inclusion of a list of member states is not very practicable. However, an updated list of member states may be obtained from the official website of The Hague Convention at httpss://www.hcch.net/en/instruments/conventions/status-table/?cid=41 or
httpss://en.wikipedia.ora/wiki/Haaue Conventions of 1899 and 1907.

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

• The document must be signed by the signatories;
• and Authentication of the document by means of an Apostille appearing on, or attached to, the document, which Apostille:
  • • • must comply with the model annexed to the Convention, but
      • may be drawn up in the official language of the authority which issues it; and
      • must bear the title “Apostille (convention de Le Hayed u 5 octobre 1961)” in the French
        language; and
      • be in the form of a square with sides at least 9cm long; and
      • be issued and signed by, and bearing the seal of office of, any of the following:
        • • • • any South African diplomatic or consular agent in the foreign country concerned;
                or
              • any magistrate or additional magistrate; or
              • any registrar or assistant registrar of the High Court of South Africa; or
              • any person designated by the Director-General: Justice.
• No witnesses have to sign the document.
• Even if the document is a notarial deed or the signatories of the document have been identified and the document “authenticated” by a notary public, further authentication is required.

EXAMPLE OF THE APOSTILLE IN TERMS OF THE CONVENTION

AUTHENTICATIONS OF FOREIGN DOCUMENTS

FOR USE WITHIN THE REPUBLIC OF SOUTH AFRICA

It is important to distinction between three procedures namely:

1. Rule 63(2)(e) procedure which only apply to specified countries
2. Convention procedure which only apply to some countries
3. Rule 63 procedure which apply to all foreign countries

RULE 63(2)(E) PROCEDURE

WHICH COUNTRIES DOES IT APPLY TO?

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

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

• The Signatories must sign the document; and
• Notary public practicing as such in that country must:
  • • Identify the signatories; and
    • Sign the document; and
    • Affix his/her seal of office to the document
    • No witnesses must sign the document
    • The notary public need not to identify the signatories on a certificate separate of the document it is acceptable for the notary to identify the signatories by affixing such a clause below their signatures followed by his/her signature and seal of office.

AUTHENTICATION IN TERMS OF THE CONVENTION FOR THE ABOLITION OF THE REQUIREMENT OF LEGISLATION FOR FOREIGN PUBLIC DOCUMENTS

WHEN IS IT APPLICABLE?

• The Convention may be used if the country where the public document is signed as well as the country where the documents is.to be used are both Convention countries.
• When the Rule 63 procedure is more simplified than the Convention procedure, the latter may not be insisted upon.
• This Convention is only applicable to public documents which is defined as:
  • • • • • Documents originating from a government or official associated with the courts or tribunal of
            the State including those originating from a public prosecutor, clerk of the court or sheriff;
          • Administrative documents;
          • Notarial deeds; and
          • Official certificate attached to documents which were signed by person in their private capacities, such as official certificate to confirm the registration of a document or the fact that it existed on a certain date and official and notarial authentication of signatures.
• The Convention is not applicable to:
  • • • • • Documents executed by diplomatic or consular agents; and
          • Administrative documents dealing directly with commercial or customs activities.

WHICH COUNTRIES DOES IT APPLY TO?

Since the Convention may still afford membership to states, and membership may be terminated, the inclusion of a list of member states is very impracticable. However, an updated list of member states
may be obtained from the official website of The Hague Convention at
httpss://www.hcch.net/en/instruments/conventions/status-table/?cid=41 or
httpss://en.wikipedia.org/wiki/Hague_Conventions_of_1899_and_1907.

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

• The document must be signed by the signatories; and
• Authentication of the document by means of an Apostille appearing on, or attached to, the document, which Apostille:
  • • • must comply with the model annexed to the Convention, but
      • may be drawn up in the official language of the authority which issues it; and
      • must bear the title “Apostille (convention de Le Hayed u 5 octobre 1961)” in the French
        language; and
      • be in the form of a square with sides at least 9cm long; and
      • be issued and signed by, and bearing the seal of office of, any of the following:
• any South African diplomatic or consular agent in the foreign country concerned;
  or
• any magistrate or additional magistrate; or
• any registrar or assistant registrar of the High Court of South Africa; or
• any person designated by the Director-General: Justice.
  • • • No witnesses must sign the document.
      • Even if the document is a notarial deed or the signatories of the document have been identified and the document “authenticated” by a notary public, further authentication is required.

EXAMPLE OF THE APOSTILLE IN TERMS OF THE CONVENTION

RULE 63 PROCEDURE

WHEN IS IT APPLICABLE?

A document referred to in Rule 63 means any deed, contract, power of attorney, affidavit or other writing, but does not include an affidavit or solemn or attested declaration purporting to have been made before an officer prescribed by section 8 of the Justices of Peace and Commissioners of Oaths Act 16 of 1963.

WHICH COUNTRIES DOES IT APPLY TO?

This procedure may be followed in respect of documents signed in any country other than South Africa.

WHAT IS THE PROCEDURE THAT NEEDS TO BE FOLLOWED?

• The document must be signed by the signatories; and
• Authentication of the document by means of a certificate attached to the document, which certificate must be issued and signed by; and bearing the seal of office of, any of the following:
  • • • • The head of the South African diplomatic or consular mission; or
        • a person in the administrative or professional division of the public service serving
          as a South African diplomatic, consular or trade office abroad; or
        • any Government authority of such country charged with the authentication of
          documents under the law of such country; or
        • the consul-general; consul; vice-consul or consular agent of the United Kingdom.
• No witnesses have to sign the document.
• Even if the document is a notarial deed or the signatories of the document have been identified
  and the document “authenticated” by a notary public, further authentication is required.

EXAMPLE OF THE CERTIFICATE OF AUTHENTICATION IN TERMS OF RULE 63