South Africans living abroad but transacting locally are a regular occurrence. Our law provides a legal framework to facilitate instances where "wet-ink" signature of documents remains a legal requirement, such as when deposing to affidavits or providing powers of attorney intended for use within South Africa, and where physical copies of documents need to be authenticated as true copies of the originals.
Clients are generally dismayed when confronted with these requirements, which are relatively laborious compared to, say, acceptance of electronic signatures. This article might not satisfy their demands for convenience, but it may help to illustrate the attorney’s position in this regard. Although the need for modernisation is evident, we will not deal here with all the reasons behind the continued use of pen and paper. The short answer, for our purposes, is that when banks and prosecutors need to convince South African courts that the person with his back against the wall is wrong in averring that someone did not in fact sign a document, authentication procedure matters.
The legal framework for proving wet-ink signatures is provided by Rule 63 of the Uniform Rules of Court, and The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (the HCCH 1961 Apostille Convention) as opposed to the various other Hague Conventions dealing with other matters, such as torture, war and child abduction). As the Hague Convention makes the authentication process relatively straight-forward, but between member countries only, we will instead focus on Rule 63, and specifically examine the way Rule 63(2)(c) has found application, if any, in court cases.
Rule 63(1) – (4) reads as follows:
(1) In this rule, unless inconsistent with the context:
'document' 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 eight of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963);
'authentication' means, when applied to a document, the verification of any signature thereon.
(2) Any document executed in any place outside the Republic shall be deemed to be sufficiently authenticated for the purpose of use in the Republic if it be duly authenticated at such foreign place by the signature and seal of office
(a) of the 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
(b) of a consul general, consul, viceconsul or consular agent of the United Kingdom or any person acting in any of the aforementioned capacities or a proconsul of the United Kingdom; or
(c) of any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
(d) of any person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (a), (b) or (c) 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
(e) of a notary public in the United Kingdom of Great Britain and Northern Ireland or in Zimbabwe, Lesotho, Botswana or Swaziland; or
(f) of a commissioned officer of the South African Defence Force as defined in section one of the Defence Act, 1957 (Act No. 44 of 1957), in the case of a document executed by any person on active service.
(2A) Notwithstanding anything in this rule contained, any document authenticated in accordance with the provisions of the Hague Convention Abolishing the Requirement of Legislation for Foreign Public Documents shall be deemed to be sufficiently authenticated for the purpose of use in the Republic where such document emanates from a country that is a party to the Convention.
(3) If any person authenticating a document in terms of subrule (2) has no seal of office, he shall certify thereon under his signature to that effect.
(4) Notwithstanding anything in this rule contained, any court of law or public office may accept as sufficiently authenticated any document which is shown to the satisfaction of such court or the office, to have been actually signed by the person purporting to have signed such document.
Rule 62(2)(a) and (b) define the categories of officials whose seal of office and signature are required as authentication of a client’s signature with greater clarity than sub-rules (c) and (d). For example, sub-rule (c) seems to indicate that a client abroad, say in Nigeria, may simply approach a magistrate for authentication. Furthermore, rule 63(4) clearly grants our courts or public officers a discretion whether to accept an authentication as legitimate. The potentially wide scope of government authorities envisaged in rule 63(2)(c), read together with the discretion to accept documents provided by rule 63(4), necessitates a look at how our courts have applied these rules.
In Hoosen v Geoffrey Inc 2002 JOL 9901 (T) which concerned a trademark dispute, the proper authentication of a deponent’s affidavits in the USA was tested. Rule 63(2A), which permits authentication by any method allowed by the Hague Convention, was only inserted in 2010, a method permitted by the Hague Convention which consequently, even though the deponent used a special certificate called an apostille, permitted by the Hague Convention, to verify the signature of the American notary public who had authenticated the deponent’s signature, the court had to consider the relationship between rule 63 and the Hague Convention. The court held that rule 63 enjoys preference, and found that, although the Hague Convention had been complied with, there was not compliance with rule 63(2)(c) as it was not shown that a notary public was a government authority charged with authenticating documents under USA law. This was despite expert evidence being led as to which specific officials in the USA were authorised to sign the apostille. Although it was also not shown that there had been compliance with any of the other sub-rules of rule 63(2), the court found that it was established on a balance of probabilities that the affidavits had in fact been signed by the deponent and thus accepted them as evidence in terms of rule 63(4).
In Maschinen Frommer GmbH & Co KG v Trisave Engineering & Machinery Supplies (Pty) Ltd 2003 (6) SA 69 (C) the defendant attacked the genuineness of a foreign judgment obtained against it in Germany. Although the copy of a foreign judgment annexed to a provisional sentence summons had not been authenticated in accordance with rule 63, the court, citing earlier case law, held that “the prescribed formalities are not mandatory, and the genuineness of such documents may be proved on a balance of probabilities by means of direct or circumstantial evidence or both.” It found the copy of the German judgment to be genuine on a balance of probabilities, in part because the defendant had been shown to have inadvertently by implication accepted the German judgment in its own papers and granted the order against the defendant.
In another application for provisional sentence summons, the court in Blanchard, Krasner & French v Evans 2004 (4) SA 427 (W) reiterated the principle that the rules set out in rule 63
“are not exhaustive but are, as Erasmus Superior Court Practice B1 – 407B said, merely directory. They do not take away the power of the Court to consider other evidence directed at the proof of a document executed in a foreign place, and to accept such document as being duly executed.”
The court found that subrules 63(2)(c) and (d) had been complied with and was satisfied, in terms of rule 63(4), with the genuineness of a foreign judgment. Here, the signature of a Californian judge was authenticated by another judge, whose signature was authenticated by the clerk of that court, whose signature was authenticated by an apostille of the Secretary of State.
Although this principle of the court’s discretion was cited with approval in Dique v Viljoen 2007 JOL 20648 (T), the court dismissed the application for summary judgment as it was unconvinced by the evidence before it regarding the authenticity of the plaintiff’s affidavit (signed in Australia) and so refused to exercise its discretion in terms of rule 63(4) in favour of the plaintiff.
However, an affidavit authenticated merely by a Los Angeles notary public was accepted, citing Machinen and Blanchard above, in Durant & Viljoen (Pty) Ltd for its liquidation 2008 JOL 22069 (T). Similarly, an evidential chain of foreign certificates and affidavits were accepted in Van Rooyen v S 2016 JOL 37631 (GJ) resulting in the dismissal of an appeal and extension of bail.
The facts in Dale v Riaan Du Plessis Attorneys and Conveyancers(798/2020) 2022 ZAGPPHC 204 hit close to home. The respondent, a conveyancer, defended an application by a (former) client whose property he had transferred, as the proceeds of the sale, which were due to the transferee client, ended up in the wrong bank accounts. The applicant filed affidavits apparently deposed to in Germany before a notary public but without compliance with rule 63(2). The affidavits were found to be shambolic, also in other respects, and were rejected by the court. An application for leave to appeal was dismissed.
Lastly, in Mahomed N.O. v Al-Al Shaik N.O. 2024 JOL 63426 (GJ) the applicants contended that there was no indication ex facie the document in question (a power of attorney) that it was in fact signed by the respondents, neither had rule 63(2) been complied with on signature. The court held that lack of compliance with rule 63(2) was “not the end of the matter”, for in terms of rule 63(4) it “is entitled to accept as sufficiently authenticated a document which is shown to the satisfaction of the court…”. According to the court, the facts implied that, should the applicants’ version be true, a South African ambassador and a certain law firm would have been “complicit in a serious fabrication and a forgery”, a conclusion that the court rejected. The document was accepted in terms of rule 63(4) as sufficiently authenticated.
Although the decisions show instances where courts have exercised their discretion in terms of rule 63(4) to admit, as evidence, documents not strictly complying with rule 63(2), there are also instances where non-compliance with rule 63(2) was not condoned. These were cases where authenticity was not shown to the satisfaction of the court either by the facts or by corroborating evidence. Compliance with rule 63(2)(c) may not always be easy to illustrate. Attorneys should ensure that foreign documents are ex facie convincing. If prevention is the best cure, proper compliance with rule 63(2) or 63(2A) is clearly a better, albeit more cumbersome, option, than relying on the court’s discretion under rule 63(4).
