Signing documents in a foreign country
Signing documents outside of the Republic of South Africa can be problematic because different procedures apply depending on the rules of the country where the documents are to be signed.
Modern commerce has resulted in the exchange of documents across borders which leads to affidavits and conveyancing documents being signed in a foreign country.
A typical property transfer requires various FICA affidavits, marriage declarations and a power of attorney to be signed. It is, however, a regular occurrence that the grantor or the seller, in simple terms, is either travelling or resides in a foreign country.
The following needs to be kept in mind when it comes to transfer documents being signed in a foreign country:
An immediate source of law is Rule 63 of the High Court which provides that documents signed in countries outside of South Africa must be authenticated for use in South Africa.
Documents may be authenticated by:
- The head of a South African diplomatic or consular mission; or
- A consul-general, consul, vice-consul or consular agent of the United Kingdom;
- Any government official of the foreign country who is authorised to authenticate such documents;
- Any person of a foreign country who is able to prove with the presentation of a certificate that they are authorised to authenticate documents as made mention to above;
If a document is authenticated as above, the document must be signed by the signatory and such signature authenticated by the relevant authority by means of the issue of a “Certificate of Authentication”. This certificate is signed and bears an official seal of office of the person requested to authenticate the document.
The above-mentioned certificate is required even if the document has been authenticated by a Notary Public. No witnesses are necessary.
- NOTARY PUBLIC (RULE 63)
In the event, however, that the document is authenticated by a Notary Public within the United Kingdom; Northern Ireland, Botswana, Lesotho, Swaziland or Zimbabwe, the document merely needs to be signed by the signatory and signed by the Notary who identifies the signatories and places his official seal or stamp on the document. There is no need for a separate certificate, apostille or the need for further witnesses. Take note however, that this procedure only applies to the countries specifically listed above. Note that documents cannot be authenticated by a Notary Public in Namibia. However, the provisions of the Hague Convention may apply.
- HAGUE CONVENTION
A further source of law and possibly a simpler manner of authenticating documents lies in the Hague Convention of October 1961 (“the Convention”). The Convention essentially recognises the signing of documents in member countries and prescribes the procedure to be followed.
Accordingly, documents signed in countries that are members of the Hague Convention must be signed by the signatories and authenticated by means of an apostille.
The apostille is prepared by the official authenticating the documents and must comply with the format prescribed by the convention. The apostille may be signed and sealed by:
- a South African diplomatic or consular agent in the foreign country concerned; or
- any magistrate or additional magistrate; or
- any registrar or assistant registrar of the High Court of South Africa; or
- any person designated by the Director-General: Justice.
It is important to note that the procedure above (by means of an apostille), may only be used where both countries are members of the Hague Convention. Reference to the list of member countries can be obtained from the convention website https://www.hcch.net/.
It is interesting to note that documents signed in Antarctica do not require authentication and the laws of South Africa will therefore apply to South African citizens whilst they are in Antarctica.
It must be said that signing of documents in countries outside of South Africa may lead to delays in the transfer process given that such documents must be sent back to South Africa and the signatory may also be required to make an appointment with a Notary Public or a relevant government office.
Moreover, the ever-present Covid-19 pandemic has resulted in restriction on the movement of persons and the shutdown of various government offices abroad which may prevent persons from attending at the relevant offices.
In these circumstances, it is advisable that when parties to a property transfer are located outside of South Africa, arrangements should be made early in the transfer process to avoid lengthy delays due to signing and delivery of original documents back to the conveyancer.
Parties who intend to travel for long periods and who are commencing with a property transaction may sign a special power of attorney authorising a trusted third party to sign on their behalf. However, take note that the special power of attorney must be prepared by a conveyancer and such special power of attorney must be signed in South Africa to give effect to it and circumvent the cumbersome procedures made mention to above.
It is advisable for parties to indicate to their conveyancer and property practitioner at the commencement of the transaction that they will be traveling or will be residing in a foreign country during the transfer process.
For further advice and information on signing and authenticating of documents in foreign countries do not hesitate to contact any of our trusted professionals.
011 874 1800