Where do you start enquiring as to who can do what … a
Commissioner of Oaths or a Notary Public?
Let the demystifying begin …
A document is referred to as being “commissioned”
when an affidavit (a statement under oath) is signed before a Commissioner of
Oaths by the signatory, referred to as a ‘deponent’. When documents are “certified” the
document is confirmed to be a true copy of the original by a Commissioner of
Oaths, i.e. document such as identity documents, utility bills, academic
transcripts and many more.
In terms of South African law a Commissioner of
Oaths is appointed by the Minister of Justice, or by any officer of the
Department of Justice with the rank of director authorized in writing to do so. Attorneys, bank managers, marriage officers
and police officers are, by the nature of the position they hold, Commissioners
of Oaths.
An application to become a Commissioner of Oaths can
also be made to the local Magistrate’s Court, on the prescribed form, by any
person who wishes to become a Commissioner of Oaths. Consideration is given, amongst other
factors, to the number of Commissioners of Oaths in the area – as the position
is area bound – and the position/s the applicant has held and/or is
holding. Commissioners of Oaths should
not charge a fee for their services, in terms of the Act mentioned above.
A Notary, or Notary Public, on the other hand, can
charge a tariff related fee. Notaries
are specialized attorneys, having completed a competency exam after their
admission as attorneys. Notaries are part
of an esteemed group of professionals who can commission affidavits and certify
documents, similarly to a Commissioner of Oaths. However, a Notary is further qualified to
notarially certify documents and authenticate same – explained below. Therefore, all Notaries are Commissioners of
Oaths, but all Commissioner of Oaths are not Notaries – just like all thumbs
are fingers, but all fingers are not thumbs.
When a request is made to “notarise” a
document, such notarising can either be required for certification purposes, as
explained above, but more often than not for notarial certification which is required
for authentication purposes – i.e. confirming a document to be a true copy of
the original, and furthermore for use outside the borders of the
Republic of South Africa. A Notary, is held
to a higher standard of care than a commissioner of oaths, and is therefore
approached for this specialized purpose.
Let’s explore authentication of documentation a bit
more. In the Republic of South Africa Rule 63 of the High Court Rules of Court
regulates authenticity of documents. Just
as we have Rule 63, each country has its own legal system and requirements in
terms of the authenticity of documents, which is a nightmare when documents
have to be utilized across borders. To achieve a standard in relation to the
authenticity of documents across borders, confirming the document is what it
purports to be, and if signed, that it is in fact signed by the person that is
required to sign the document, enter The Hague Convention (“the Convention”).
The Convention was created and signed by member
countries, wherein it was agreed and accepted by such members that the authentication
of documentation is fulfilled when (1) signed before a Notary and (2) such
Notary is then to ensure an Apostille, the seal of a High Court, is placed
thereon which further authenticates the document.
Should a country, for which the document is intended,
not be a member of The Hague Convention, a further authentication procedure is
required. Such further process will entail (3) after placing of the Apostille the
document is referred to the Department of Internal Relations (“DIRCO”) for
authentication of the Apostille. A list
of the member countries can be found at http://www.hcch.net .
Notary Publics are also approached for the drafting of
specialized documents, such as antenuptial contracts, deeds of servitude,
usufruct, lease, donation and bonds. All
these deeds are listed in the Notary’s protocol, who also retains copies
thereof.
Certification, commissioning, notarising and
authentication, although appearing to refer to the same procedure, is therefore
quite different in definition. Furthermore,
the different functions of a Commissioner of Oaths and a Notary Public are also
now clearly defined above.
Should any aspect of the above require further
explanation or if a Notary Public is required for any specialized requirement,
as mentioned above, Tuckers Incorporated have two Notary Publics and are eager
to assist you.
Please contact us on 011 897 1900, 076 777 1920 alternatively email us on info@tuckers.co.za for a cost estimate and/or setting up of a consultation.
Article
contributed by Hayley Appel of Tuckers Incorporated.