DOES YOUR DOCUMENT REQUIRE A COMMISSIONER OF OATHS OR A NOTARY PUBLIC?

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.

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