Notarising or Certification of Certified Documents: What do They Mean, and Why Does it Matter?

January 28, 2024
IP Law | Notarial and Trust Law | Notarial Practise and Trust Law
|Woman taking oath

Commissioner of Oaths and Certified Copies

Whenever you present a copy of a document for official use, the recipient will most often require a certified copy to ensure its authenticity. To have this done, you’ll need a Commissioner of Oaths to certify the document for you.

Commissioners of Oaths are appointed in terms of the Justices of the Peace and Commissioners of Oaths Act of 1963. Attorneys can act as commissioners of oaths, but the authority to do so can also be conferred upon any individual who follows the correct application process and is authorised to act in that capacity by the Minister of Justice.

The primary roles of a commissioner of oaths are as follows:

  • To administer oaths or affirmations
  • To certify copies of original documents as true copies.

Attorneys are regularly involved in commissioning affidavits on behalf of deponents. It’s important to note that in litigation, an attorney is not permitted to commission a document on behalf of their own client without facing consequences.

Administering of Oaths or Affirmations

There is a specific manner in which a commissioner of oaths can administer an oath or affirmation. Adherence to this protocol means that the person who is the deponent (the signatory of the affidavit), is bound to the statements that they have made in the affidavit.
In order to fulfill their mandate, a commissioner of oaths is required to:

  • Ensure the identity of the person signing the affidavit is confirmed through the presentation of an identification document;
  • Ensure that the person who is deposing to the affidavit knows and understands what they are signing - and if they do not, direct them to an attorney or other suitably qualified person to explain it to them before they take their oath;
  • Confirm whether they have any objection to taking the oath or affirmation and whether they consider it binding upon their conscience;/li>
  • To witness the signatory apply their initials or signature to the document;
  • The commissioner must also ask certain questions of the deponent, such as whether they know and understand the contents of the document, and whether they have any objection to taking the oath or giving an affirmation.

Commissioners must then append a stamp to the end of the affidavit and include specific wording which confirms that they have fulfilled their duties. The work of a commissioner is provided as a public service. A commissioner of oaths may not charge a fee – either to certify a document or to take someone’s oath or affirmation.

Original Documents

In order to certify documents as a true copy of the original, the commissioner must ensure that they have viewed the original documents and that they are identical to the copy that they are commissioning.

As a general rule, commissioners of oaths fulfil their functions within a local context – that is, they take oaths for persons within the Republic of South Africa, and they certify documents for use within the Republic of South Africa. There are only a few jurisdictions, globally, that will accept the role of a commissioner of oaths for documents used outside of South Africa.

For that reason, if there is a need for someone to take an oath in a document that is to be used in a foreign jurisdiction or to confirm that a document is in fact a true copy of the original, the services of a notary public must usually be engaged for this function.

Notaries Public and the Authentication of Documents

Notaries fulfil a wider range of functions other than those performed by a commissioner of oaths. However, for clarity, this article will only focus on apostilles and the authentication of documents.

A notary public, in the South African context, is an attorney who has passed a particular exam and whom has been admitted as a notary public. The office of the notary is one that incurs specific legal responsibilities, and the notary bears personal responsibility for their work. This is particularly important when it comes to verifying the authenticity of documents that are notarised. This means that if a notary authenticates a document as an original, but it is in fact a fake, the notary public will bear personal responsibility for the outcome thereof. A notary public accordingly is entitled to, and must charge, for the services which they administer. These fees are prescribed by the Law Society of South Africa.

A notary public can also take the oath of an individual. Again, a similar set of rules is followed in order to ensure that the person taking the oath or giving an affirmation knows and understands what they are signing.

A notary is the only person who can attest the signatories of parties to an antenuptial contract. As with their responsibilities described above, they also bear the responsibility to ensure that the couple who sign the antenuptial contract know and understand what they are signing. For more information on antenuptial contracts, contact our Family Law Department and Notarial Practice and Trust Law Department for professional advice and assistance.

Notaries are involved in the legalisation of documents for use in foreign jurisdictions, and, depending on the country in which the document will be utilized, a notary must either prepare the document by way of authentication or apostille.

What is an Apostille?

An apostille is a document confirming that a notary has verified the authenticity of a related document or set of documents.

An apostille can be attached to a document when the country in which the document is to be used is a country which is a signatory to the Hague Convention of 5 October 1961 (Abolishing the Requirement of Legalisation for Foreign Public Documents). Not all countries are signatories to this treaty, however, but for Apostille Convention countries, the result is a faster and more efficient process for individuals who need documents to be apostilled for use in that country.

To facilitate an apostille, the notary will meet with the signatory and either witness them sign a document or confirm that the signature which appears on the document is in fact their own. Alternatively, in the case of confirming that a document is a true copy of the original, the notary must inspect the original and be satisfied that the copy is in fact a duplicate of the original. As media evolves, particularly with the advent of electronic originals, a notary will have to inspect the original electronic document and may also need to confirm with the party issuing the document, that it is in fact true and correct.

Once satisfied, the notary must sign the document and then prepare a certificate confirming their attendance. This is then sent to the High Court, where the notary’s signature is confirmed, and a further certificate is then added to the document. The entire bundle can then be used in a foreign jurisdiction, and it is relied upon that the notary has duly and diligently fulfilled their role in ensuring the document is what it purports to be.

Authentication of a Document

By comparison, authentication is a far more laborious process. This is usually necessary when dealing with countries that are not a signatory of The Hague Convention of 5 October 1961 (Abolishing the Requirement of Legalisation for Foreign Public Documents).

The first step is for the notary to confirm that the document is what it purports to be. The notary must then prepare a certificate which is duly sent to:

  • The High Court
  • DIRCO (The Department of International Relations and Cooperation)
  • The embassy of the country to which the document is due to be sent

With the advent of the COVID pandemic, DIRCO procedures have changed. Now, documents to be authenticated are sent to DIRCO via postal courier where they are captured, processed, and sent back via postal courier. This process can take 6-8 weeks or more.

The document must then be sent to the embassy. Each embassy’s procedures and protocols differ, and each charges a different fee to authenticate a document. Each embassy also has a different turnaround time.

At Witz Inc., we will assist you with obtaining a quotation from the embassy when the document is returned from DIRCO. We are also then able to obtain an estimated time frame within which the document will be returned from the embassy.

Finally, when the document is returned from the embassy, it is ready for presentation in a foreign jurisdiction.

Friendly, Professional Legal Services Under One Roof

For many people, the terminology around the verification of documents can sometimes be confusing. An innocent misunderstanding or procedural error can be costly, particularly when dealing with the complexities of Court or embassy requirements. At Witz Inc., we can help you through the process, providing expert advice and assistance within a framework that is simple and easy to understand.

Witz Inc. is a law firm in Johannesburg that provides a range of specialised legal services. We serve individual and corporate clients, in matters ranging from family law and criminal law to civil litigation, corporate and commercial law, and IP and trademark law.

We provide advice and legal representation in a friendly, welcoming environment where the needs of our clients are a priority. To arrange a consultation, contact us today.