Our firm has over time lodged transfers where the powers of attorney to transfer or mortgage was duly signed by the grantors, one of whom is unable to write and signed by means of a cross or a thumbprint. Such mark or thumbprint is always duly identified as the mark of the person who made the mark or thumbprint by placing his or her name directly under the mark or thumbprint, as is almost universally accepted practice. There can be no mistaking that the mark or thumbprint was made by that person.
Section 95 of the Deeds Registries Act 47/1937 (DRA) applies to the attestation of the signatures of signatories to powers of attorney to be lodged in the Deeds Office reads as follows:
95. Attestation of powers of attorney executed in the Republic.—(1) Any power of attorney executed within the Republic shall, if it purports to give authority to pass, cede, amend or cancel a deed capable of being registered or to perform any act proper to be performed in a deeds registry, be attested either by two witnesses above the age of fourteen years, competent to give evidence in any court of law in the Republic, or by a magistrate, justice of the peace, commissioner of oaths or notary public, duly described as such….
The powers of attorney are always witnessed (attested) strictly in accordance with the provisions of section 95 of DRA.
The requirement by a commissioner of oaths stating that a mark/thumbprint was made by a specific person who is unable to write is a requirement in terms of Regulations 4 to the Justices of the Peace and Commissioners of Oaths Act 16/1993 (copy of the regulations enclosed) and applies specifically to the administering of an oath or affirmation – it does not relate or apply to a power of attorney or any other document that is not an affidavit or confirmation as referred to in the said Act and Regulations.
The Deeds Manual states that the mark or thumb print must be confirmed by a commissioner of oaths who must confirm that it is such person’s mark or thumbprint. There is no obligation on anyone to comply with a rule or practice that is patently wrong, which this practice is. The rule is referred to on page 1-50 of the Deeds Manual as well as on page 1-150, first bullet stating:
If a person signs a power of attorney by affixing a mark/thumbprint it must be commissioned as per regulation 4(1) of the Justices of the Peace and Commissioners of Oaths Act 16/1963 on each page on which the mark/thumbprint appears.
On both pages 1-50 and 1-150 this requirement is stated with no authority to back the requirement. As stated previously the regulations to Act 16/1993 deal with something completely unrelated to the signing of a power of attorney. Regulation 4(1) refers to a deponent, meaning a person making an affidavit or an affirmation. To make an assumption that this also applies or should apply to a power of attorney (or any other document other than an affidavit/affirmation) is in our opinion an intolerable situation and clearly incorrect. This is even more of an incorrect practice in view of the fact that clear rules for the attestation of powers of attorney are set out in section 95 of DRA. The practice wastes time and effort and costs clients money. Besides being an incorrect and unnecessary application of the Regulations made in terms of the Justices of the Peace and Commissioners of Oaths Act 16/1963 to an unrelated legal act, deeds are rejected requiring the compliance with regulations.
We suggest that the Deeds Manual be amended to delete this as a requirement when powers of attorney are signed by a person who cannot write.
Our Registrars of Deeds seem to fancy themselves as legislators as is evidenced by the Registrars' circulars and the Conference Resolutions with which we are bombarded!