Is it appropriate for an agent to appear before a Notary Public to execute notarial attested documents?
Introduction
It is often the practice that the parties to a notarial deed do not appear in person before the notary, but appoint an agent in terms of a Power of Attorney to appear before the notary.
In the cases of Ex parte Moodley and Another and Ex parte Iroabuchie and Another 2004 (1) SA 109W, an agent appeared before the Notary Public for the execution of an Antenuptial Contract and the judge frowned upon this practice.
Decision of the Court
The court held that in circumstances where parties appointed an agent to appear on their behalf before a notary, the notary public who executes the contract may not know whether the parties to the contract fully understand the nature and consequences of same and, therefore, unless there is proof of urgency to justify their absence, the parties should appear personally before the notary for the signing thereof.
The Court further held that the notary public could not be satisfied that the contracting parties have been fully apprised of the matrimonial regime into which they were entering, as the notary public had not met the parties and had not explained the various options open to them in respect of their marital regimes. The Court stated that the relevant notaries had put themselves at risk in that one or both contracting parties could say they never signed the document, never knew what they were signing, did not intend that which is contained in the document or that the document was never explained to them and that they do not wish to be bound thereby.
The Court deprecated such situations where the parties to a notarial contract appoint an agent to sign same on their behalf and placed great emphasis on the importance of the obligations of the Notary when notarising contracts which the Court stated not only creates a presumption of accuracy of such contracts, but also allows for public reliance thereon.
Conclusion
Although the above cases are relevant to antenuptial contracts, all notarially attested agreements should be signed by the parties in the presence of the notary and not by an agent in their stead unless urgency can be proved.
In the case of Incorporated Law Society v Kantor 1914 TPD 510, De Villiers JP held that it is the duty of the court to make Notaries realise that their duties are of the greatest importance and strictly personal.
It is trusted that the warning explicated in the said referred to cases once again highlights the importance of the office of the Notary Public and that Notaries take heed.
Allen West
Property Law Consultant
Tonkin Clacey
Reader Comments:
I have not read the judgments referred to in Allen West's article but I assume that the gist of the judges'remarks are contained in the article. I have always understood that the parties to a notarial document (or their agent/s) must appear together before the Notary. This is not possible when they or one of them does not live in the city where the Notary practises. I agree that one must establish exactly what it is that the parties want in the contract one is preparing and obviously the Notary must ensure that it correctly reflects the clients'instructions. This can be done by correspondence and telephone conversations and I accept that the Notary must be satisfied that the parties understand the document that they are authorising the agent to sign.
A copy is attached to the Power of Attorney and the party signing the Power also initials the draft contract attached so as to indicate that it is the document that he is authorising his agent to sign. And what about the Registrar of Deeds who daily registers transfers and bonds on the strength of the signatures of agents authorised by powers of attorney signed by transferors and mortgagors? Is there some difference because conveyancers and not notaries are involved?
It has become perfectly routine in Cape Town Notarial practice to prepare Ante-Nuptial contracts (and probably also other notarial contracts for signature by an agent and frequently the agent is the Notary's secretary) simply for purposes of convenience and in the anticipation that the principal may not be available to appear personally when signature is required. It also conceals from the principal the possibility that amendments to formal components of the contract may be required due to lax or incompetent draftsmanship of the original - not to mention the horrendous situation where the signature by the agent has to be backdated because while the PA was signed prior to the marriage, the ANC itself is actually being signed after the marriage!
In order to facilitate these things the PA says, " ... to sign the original of the draft contract annexed hereto or a contract substantially in accordance with the draft annexed hereto" (or words to that effect) thus creating a loophole as wide as a barn door. So signature by an agent can hide a multitude of sins which may actually be inexcusable. The fact that this has become routine in some offices is also inexcusable. But since there is actually no law which explicitly forbids it, it would take a change in the law to stop it.
Notaries are loath to refuse to refuse to cooperate because all that will happen is that non-notaries who feed them with work will simply go elsewhere.
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