You need to send a South African document overseas for business purposes or you are selling your South African property while you are working and residing in the United Kingdom. What are the requirements for the documentation to be accepted and deemed to be valid and binding for the purpose for which it was executed?
The High Court Act 59 of 1959 prescribes the formalities to be complied with regarding documents which have been signed outside of South Africa for use in South Africa. The process to be followed is contained in Rule 63 of the High Court Rules of Court (hereinafter referred to as Rule 63).
All countries have unique formalities which must be complied with regarding the execution of documentation, resulting in a diversity of different legal systems, causing a complicated chain of authentication procedures that needs to be adhered to when foreign documents are required to be legalised. As a result hereof the Hague Convention of 5 October 1961 took place, (hereinafter called the Hague Convention) having the effect of simplifying the requirement of legalisation for foreign public documents.
The above resulted in the formalities of legalisation for all countries that have agreed to be part of the Hague Convention, to be changed to the simple delivery of a certificate in a prescribed form, called an “Apostille”, by the authorities of the state where the document originates. The purpose of said certificate is to legalise a specific document by means of a certificate issued by the diplomatic or consular agents of the country in which the document is produced, which certificate certifies the authenticity of the signature, the capacity in which the person signing the document has acted, and where appropriate, the identity of the seal or stamp which it bears. The formality to certify the authenticity of the signature, capacity in which the person signing the document has acted and where appropriate, the identity of the seal or stamp which it bears, is the addition of the Apostille (certificate), issued by the competent authority of the state from which the document emanates. The Apostille accordingly does not relate to the content of the underlying document itself.
Here follows a short summary of what needs to be taken into account to ensure compliance with the prescribed formalities:
The difference in the authentication processes of Rule 63 and the Hague Convention are described below:
A document authenticated in terms of Rule 63 must be signed by the signatories only, and no attestation by witnesses is required. The document is further authenticated by means of a “Certificate of Authentication” to be affixed to the document, which certificate must be issued and signed by, and bear the seal of office of any of the following, namely the head of the South African diplomatic consular mission, or a person in the administrative or professional division of the public service serving in 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.
In South Africa all documentation that requires legalisation are to be sent to the Legalisation Section of the Department of International Relations and Cooperation (“DIRCO”), situated in Rietondale, Pretoria. Said department has prescribed formalities that needs to be adhered to when a request for legalisation is submitted, and it is advised that you contact your attorney or a public Notary to submit a request on your behalf should you have the need to legalize a document as such.
Authentication in terms of the Hague Convention entails the signature of the document by the signatories (again, no witnesses are required, and it includes any notarial documents attested by a notary public) and the authentication of the document by affixing an Apostille thereto. The Apostille must comply with the prescribed format stipulated in articles 4 & 5 of the Haque Convention and must bear the title “Apostille (convention de Le Haye du 5 Octobre 1961)”. It must furthermore be issued and signed by, and bearing the seal of office of any of the following, namely any magistrate or additional magistrate or any registrar or assistant registrar of the High Court, or any person designated by the Director-General of Justice.
The above is not a simple procedure and it is advised that you obtain legal advice when you require any documents to be legalised to ensure full compliance of all prescribed formalities.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)