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Execution and signing

26 July 2012

EXECUTION AND SIGNING OF NOTARIAL DEEDS AND DOCUMENTS
INTRODUCTION
The execution clause of a notarial deed or document is an important clause, not only because it contains the signatures of the parties to the contract but also supplies verification of the signatures in the event of subsequent litigation.  By virtue of the attestation of a notarial document it is raised to a high level as a notarial deed is a public instrument (Estate Brown v Elliott Bros., 1923 C.P.D. 325).  A notarially attested document is of such great moment that it can almost be declared a solemn document (Transvaal Land Co. v Registrar of Deeds, 1909 T.S. 759).  There is a presumption that every statement in a notarial deed is true and that all the proper solemnities have been observed by the notary (Transvaal Land Co. v Registrar of Deeds, 1909 T.S. 759).  Notarial deeds are evidence per se of the facts stated therein (Ryneveld v. Bain, 3 Menz. 383).  A registrar of deeds will not query the contents of a notarial deed unless it is prima facie blatantly incorrect.

THE SIGNATURE OF THE PARTIES

Form of Signature
There is no definition of a signature in our law.  In general there is no particular mode or form required, provided the person intends it for his/her signature.  Initials only have been held to be sufficient (In re Trollip, 12 S.C. 243; Kiddie v. Murray & Co., 1924 C.P.D. 229).  A cross or mark, inclusive of a thumb print, is also acceptable provided it is done in the presence of a commissioner of oaths who attaches the full names of the person (see regulation 3(2) of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963).  If a person suffers from physical defects, e.g. deafness, dumbness, blindness, then to protect him/herself the notary should affix a certificate that he/she read over and explained the deed and that the party understood and duly signed in his/her presence and that of the witnesses (see Ex parte Bruwer, 1924 C.P.D. 241).  If a party does not read or understand the language used then the notary should obtain an interpreter to explain the deed.  The notary should add a certificate to this effect and also to the effect that the document was explained to the party who appeared to understand it.  The interpreter should also sign and indicate that the document was interpreted by him/her.  It is to be noted that if a statute requires a document to be executed in a certain way or before a certain person this must be strictly adhered to (cf. Steere v. Vimbindhela, 1933 N.L.R. 681).

Place of Signature
As the position of a signature may affect the interpretation of a contract (Massey Harris v. Eksteen, 1937 O.P.D. 94) it should be ensured that a deed is signed in the correct and customary place, i.e. at the end of the deed on the right hand side.

THE SIGNATURE OF THE WITNESSES

The Number of Witnesses
Even though the definition of notarial deed in section 102 of the Deeds Registries Act 47 of 1937 (the Act) would appear to dispense with witnesses it is still customary to have them.  Through custom and practice two witnesses are required in respect of the deed itself (Commissioner for Inland Revenue v Estate Graaff, 1935 A.D. 210).

Competency of the Witnesses
Section 95 of the Act provides that a person over fourteen years, competent to give evidence in a Court of law can act as a witness.  With powers of attorney the same applies but a magistrate; justice of the peace, commissioner of oaths or notary is equivalent to two witnesses.  All witnesses are presumed to be competent until the contrary is proved (R. v. Creinhold, 1926 O.P.D. 151) and a document duly attested is presumed to be valid (Ramsamy v de Chazal, 35 N.L.R. 171).  Incompetent persons are persons who do not fall under section 95, i.e. any person who derives a benefit and the agent (see section 95 and Ex parte Gordon, 1927 C.P.D. 313).

Method of Witnessing
Witnesses must be present at execution and the appearers must sign in the presence of or acknowledge their signatures before the witnesses (Incorporated Law Society v Kuyper, 1925 T.P.D. 760).

SIGNATURE OF THE NOTARY

Duty on Signature
The notary besides merely signing has certain duties to perform.  He/she should read the document over to the appearers and explain the contents thereof where necessary.  He/she must see that there are no blanks and if necessary fill these in.  He/she should see that the appearers sign before witnesses or acknowledge before witnesses (Incorporated Law Society v. Kuyper, 1925 T.P.D. 760; Morkel v Bain, 1872 (2) Roscoe 81).  Besides these he/she should see that all amendments are fully initialled by all parties and that the parties have signed correctly.

Only when he/she has satisfied him/herself on the general validity of the document should the notary sign, as the deed is completed by this action.  Once he/she has signed, re execution seems impossible not only because the deed would lack the common law essentials such as appearance, date, etc., but if agents acted their authority would terminate on the first execution.  Sections 61 and 87 of the Act recognise this by requiring an order of Court when notarial bonds or antenuptial contracts are not registered within three months of execution.  The notary signs as such and usually affix his/her seal. If he/she has no seal he/she should make a statement to this effect.  A seal, however, is only necessary when the document is for use outside the Republic. If the notary omits to sign the minute, application must be made to Court (Ex parte van der Westhuizen, 1928 C.P.D. 379).

APPLICATION TO CONVENTIONAL DEEDS AND DOCUMENTS
What has been alluded to above relating to the form of signature, place of signature, number of witnesses, competency of witnesses and method of witnessing applies mutatis mutandis to conventional documents such as powers of attorney and consents and a commissioner of oaths can verify the mark, thumb print, etc.

Allen West
Deeds Training
Pretoria

Reader Comments: 1
HARTWIG LUTTIG 03/08/2012:

WAT IS DIE POSISIE INDIEN DIE NOT AKTE MET N VOLMAG GETEKEN WORD, WIE VERDUIDELIK DAN DIE AKTE AAN DIE PARTYE EN WAAR LE DIE NOTARIS SE VERANTWOORDELIKHEID DAN?

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