Rule 63 - apostille

RULE 63 OF THE HIGH COURT RULES AND DOCUMENTS EXECUTED IN NAMIBIA

A question with which conveyancers and examiners are confronted fairly regularly is whether a document executed in Namibia for use in South Africa can be authenticated before a Notary. The answer to this question is categorically No.

A notary public may only authenticate documents executed in any of the following countries:
 

• Botswana
• The United Kingdom of Great Britain and Northern Ireland (England or Ireland)
• Lesotho;
• Swaziland
• Zimbabwe

In this instance the signatories should execute the document; no attestation by witnesses is required (RCR 16/003); and a notary public may authenticate the document by identifying the signatories, affixing his/her signature and seal of office to the document. No further authentication is needed for such documents. The last paragraph of Chief Registrar's Circular CRC 8 of 1978, dated 13 December 1978, unequivocally confirms this:

"The certificate referred to in paragraph (d) of rule 63(2) does not, therefore, apply to a document authenticated by a notary public in the countries named in paragraph 63(2)(e)."

If a document has been executed in any other country than the above-listed, either the procedure prescribed in Rule 63 must be followed, or the formalities prescribed by The Hague Convention of 5 October 1961 must be followed.

In view of the fact that both South Africa and Namibia are members of the Hague Convention, the authentication can take on the form of an "Appostille".

Authentication in terms of the Convention entails the following:
 

• The document (including notarial deeds / documents attested by a notary public - as per article 1 of the Convention) must be signed by the signatories;
   
• No attestation by witnesses are required (RCR 16 of 2003);
   
• Authentication of the document by means of an apostille appearing on, or attached to, the document, which apostille:
  • must comply with the model annexed to the Convention (as prescribed by articles 4 and 5 of the Convention), but
     
  • may be drawn up in the official language of the authority which issues it;
     
  • bear the title "Apostille (convention de Le Layed u 5 octobre 1961)" in the French language;
     
  • be in the form of a square with sides at least 9cm long;
     
  • be issued and signed by, and bearing the seal of office of, any of the following:
    
    - 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.

Example of the Apostille in terms of the Convention