Mc Naught & Co
Legalising documents for use abroad
If you have ever had to send public documents overseas, then you would be aware that you cannot simply send the documents as they are as they will not be recognized as legal documents in the other country.
There are many instances where you will need to send public documents overseas.
Here are some examples of when this is required:
- o where you have emigrated and now you are selling your property in your home country and need to sign a power of attorney to pass transfer;
- o where you are opening a bank account in another country and the bank needs your passport or birth certificate
- o where you are applying for citizenship in another country.
In instances such as these you will need to ensure that your document is authenticated in order for it to be recognized and valid in the other country, and this is where you will need to use the services of a notary public.
A notary public is a specialist attorney who has studied further and passed an additional exam who is held to a higher standard of care than a regular attorney. As such, a notary public has the authority to ‘certify’ documents for use in another country.
There are different processes which need to be followed in order to legalise documents, and this will depend on the country in which the document is to be used. Each country has their own set of rules when it comes to authenticating or legalizing documents.
In South Africa, there are the following processes, each with its own set of rules:
1. Rule 63 of The High Court Act 59 of 1959, prescribes the formalities which must be complied with where a document is signed in another country for use in South Africa. This is quite a lengthy process.
2. If a document is signed in South Africa for use in another country, then one would follow the process in terms of Government Notice R277 dated 3 March 1967.
3. In 1961 the treaty of The Hague Convention of 5 October 1961 was created. This is a simpler process than the ones above and it can be relied on where both countries (from where the document is signed and where the document is to be sent to) are members of this convention. The member countries change so it is important to ensure that the countries are currently members of this convention prior to this process being used.
In terms hereof, the documents must be signed by the signatories whose signatures are then confirmed by the notary public. The notary will then assist you by sending the documents to court in order for the Registrar to sign them and attach his seal to the apostille; thereby legalizing them.
4. Rule 63(2)(e) of the High Court Act 59 of 1959 applies only to the following countries:
- o The United Kingdom of Britain and Northern Island
- o Lesotho
- o Swaziland
- o Zimbabwe
In terms hereof, the signatories sign the document in front of the notary, who then identifies the signatories and signs and attached his/her seal to the document. An apostille is not needed for these countries.
As can be seen, these processes can be quite complex, and it is therefore important to approach a notary public when sending a document to another country or receiving a document from another country, so that the notary can advise you and assist you with the correct process.
If you require any advice or assistance with your documents in Gauteng and surrounds please feel free to contact me or contact our Kwazulu-Natal Natal offices for assistance closer to them.
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