It doesn’t always happen that parties to a sale of immovable property are in South Africa throughout the whole transaction. This article focuses on the situation where one or both of the parties are not in South Africa to sign the transfer documents when called upon to do so by the Conveyancing Attorney.
Firstly, documents that are signed outside of South Africa must be authenticated. They cannot simply be signed in another country and just couriered back to the Conveyancing Attorneys, unless certain formalities are followed.
When a buyer or seller is not in South Africa to sign transfer documents, there are predominantly two ways to deal with that situation. The documents can be signed in terms of Rule 63 of the Uniform Rules of the High Court and or in terms of the Hague Convention stipulations, relating thereto.
Rule 63 provides that any document executed in any place outside South Africa is deemed to be sufficiently authenticated for use in South Africa if, it has been duly authenticated as such foreign place by the signature and official seal of:
1. The head of a South African diplomatic or consular mission in that country, or an official delegated by such head of mission.
2. A consular general, consul, vice consul or consular agent of the United Kingdom
3. Any government official of the foreign country in question who is authorised to authenticate documents in that country.
4. Any person of that foreign country who can prove by a certificate, issued by the abovementioned persons, to be duly authorised to authenticate such document.
5. A Notary public of United Kingdom, Northern Ireland, Botswana, Lesotho, Eswatini (formerly Swaziland), or Zimbabwe for the authentication of a document in one of those countries.
Rule 63(2A) of the High Court Rules provides that notwithstanding anything in Rule 63, any document authenticated in accordance with the Hague Convention shall be deemed to be sufficiently authenticated for the purpose of use in South Africa where such document emanates from a country who is a member country to the Convention. The Convention can therefore be used as an alternative to Rule 63.
In terms of the Hague Convention, if the country wherein the document is signed and the country in which the document is to be used, are both members of the Hague Convention, the only formality that is required in order to certify the authenticity of a signature, is the addition of a certificate commonly known as an Apostille issued by a competent authority of the state from which the document emanates
One must bear in mind that both processes may be costly or take time to arrange.
The alternative option to deal with the signing of transfer and other related conveyancing documents, if either the seller or purchaser expects that they will not be in south Africa during the transfer process, would be to arrange for a special Power of Attorney to be signed authorising a trusted individual to sign documents on your behalf. In this instance the person granting the Special Power of Attorney should sign same prior to leaving South Africa, and authorise someone who will remain in South Africa and be able to sign on their behalf. The original wet ink signed document will be required.
The Deeds office requirements may prescribe certain minimum information and a certain format. So it’s always a good idea to consult with a conveyancer if a Special Power of Attorney is required, and well before the expected departure.
Written by: Frans Malete Moderated and approved by: Clive Smith
The views in this article are personal and not necessarily endorsed by the firm. The content is for informational purposes only and should not be relied upon for any actions without confirmation from a legal practitioner. The firm and author(s) are not liable for any consequences resulting from actions taken without further consultation.
I would like to say a big thank you to the entire team at Snymans Inc for providing such exceptional service with the sale of my property. I would most definitely recommend your company to others.
- Lucy Snyman
Thank you so much to Chloe for all the hard work done and the professional service you give my clients.
- Michele le Roux
Thank you team Snymans, you guys were excellent. Many thanks to Stacey and the whole team involved. Most appreciated!
- Loretta & Brian
We would like to express our heartfelt appreciation of the welcoming, excellent and professional service we have received from your whole team. We definitely know where to turn for our future business and transfers.