OBITER DICTUM Newsletter May, 2017 Issue 16

What DOES IT MEAN TO AUTHENTICATE  A DOCUMENT?

The action of authenticating a document actually refers to the action of authenticating the signature on the document and does not relate to the contents of the document .

Authentication of a signature on a document is required where a document is signed in one country and is to be used in another   country.

In this regard, there are two distinct procedures applicable to:

1. The authentication of documents executed within South Africa for use abroad; and
2. The authentication of documents executed abroad for use within South Africa.

AUTHENTICATION OF DOCUMENTS EXECUTED WITHIN SOUTH AFRICA FOR USE ABROAD

The rules applicable to the authentication of documents executed within South Africa for use abroad are as follows:

• The person who signs or signed the document must sign the document or must acknowledge his/her signature in the presence of a notary. The notary will then authenticate the signature by way of an authentication certificate and by affixing his/her seal of office to the document. By authenticating a document, such as a Power of Attorney, in this manner, the document becomes a public document;
• The notary’s signature must then be authenticated by a Magistrate or a Registrar of the High Court;
• The signature of the Magistrate or Registrar of the High Court must in turn be authenticated by the director-general of the Department of Justice, whose signature must in turn be authenticated by the director-general of the Department of Foreign Affairs; and
• Although not a formal requirement, may countries require that their local Embassy must approve and confirm the document as having been signed in South Africa.

AUTHENTICATION OF DOCUMENTS EXECUTED ABROAD FOR USE WITHIN SOUTH AFRICA

Rule 63(2) of the High Court Rules, issued under the High Court Act 59 of 1959, prescribes when a document, executed abroad for use within South Africa, will be deemed sufficiently authenticated.

The above rule stipulates that such a document will be deemed   sufficiently authenticated if it bears the signature and seal of office:

1. 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 post abroad; or
2. Of a consular-general, consul, vice-counsel or consul agent of the United Kingdom or any other person acting in any of the aforementioned capacities or a pro-consul of the United Kingdom; or
3. Of any government authority of such foreign country charged with the authentication of documents under the law of that foreign country; or
4. Of any person in such foreign place who shall be shown by a certificate of any person mentioned in 1, 2 & 3 above, or of any diplomatic or consular officer of such foreign country in SA, to be duly authorised to authenticate such document under the law of the foreign country; or
5. Of a notary public in the United Kingdom of Great Britain and Northern Ireland or Zimbabwe, Lesotho, Botswana or Swaziland.

WHAT IS AN APOSTILLE?

On 5 October 1961 a number of countries entered into convention for the abolition of the requirement of diplomatic or consular legislation for foreign documents. South Africa became a member of this convention on 30 April 1995. In terms of the said convention, documents executed in one country for the use in another country can by authenticated by means of an Apostille.

The convention provide that the formality required in order to certify the authenticity of a signature, is the addition of an Apostille (an Apostille is a certificate, certifying the authenticity of a signature), issued by a competent authority of the state from which the document emanates.

South Africa designated the following authorities competent to issue an Apostille:

• Magistrate or additional Magistrate;
• Registrar or assistant registrar of the High Court;
• Any person designated by the Director-General of the Justice Department; or
• Any person designated by the Director-General of Department of Foreign Affairs.

An Apostille can only be used if both the country where the document was signed and the country where the document is to be used are members of the convention and only if the document is a public document.

A public document is defined as:

• Documents originating from a government or official associated with the courts or tribunal of the state;
• Administrative documents;
• Notarial deeds; and
• Documents duly authenticated by a notary by way of an authentication certificate.

As such, the convention can find application where the document is signed in South Africa for use in a foreign country and where the document is signed in a foreign country for use in South Africa, but only if the requirements are met being that both countries must be members of the convention and the document must be a public document.