INSIGHTS

Sometimes it is not possible to sign transfer and bond documents within the borders of South Africa.As such Rule 63 of the High Court Rules and The Hague Convention of 5 October 1961 addresses such instances and provides for formalities to be complied with in circumstances where documents are signed outside of the Republic. Such procedure is referred to as the authentication of documents.

According to Rule 63(1) of the UNIFORM RULES OF COURT (High Court Rules), the terms “document” and “authentication” are defined as follows:

'documentation' 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 the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);

 'authentication' means, when applied to a document, the verification of any signature thereon.

The official procedures of authentication can be summarised as falling into one of three categories:

1.  Rule 63(2)(e) Procedure

The documents can be signed in the presence of a Notary Public if signed in the following countries:

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

2. Convention Procedure

Both countries must be members of the Hague Convention. Therefore, the country in which the document is being signed as well as the country in which the document is to be used must be members of the Convention.

The signed documents must

• Be signed by the signatories;
• Be authenticated, by either placing an Apostille certificate on the document or attaching it thereto;
• The Apostille must conform to the prescribed format – as set out in the Convention; and
• Must be issued and signed by, and bear the seal of office of, the competent authority of that country.

An updated list of member states may be obtained from the official website of The Hague Convention, which is http://www.hcch.net.

3. Rule 63 Procedure

This procedure may be followed in respect of documents signed in any foreign country

The signed document must

• Be signed by the signatories; and
• The authentication of the document, by means of a certificate attached to the document, which certificate must be issued and signed by, and bear 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.