The notary

It has been long established practice, which has been confirmed by the common law on numerous occasions. However, it would appear, it may just be a perception that the office of the Notary Public is slowly but surely being watered down to something non-existent. Why this harsh opinion or perception? More and more often, it is required of a notary to lodge documents with the Registrar of Deeds confirming a given duty placed on the Notary (see, for example, section 29 of the Sectional Titles Act 95 of 1986).

For this reason, it is deemed necessary to once again provide extracts from the case The Transvaal Land Co. Ltd v Registrar of Deeds 1909, August 19 to 20 to confirm the responsibility of the Notary and which the Registrar of Deeds should not intrude upon.

Judge Solomon had the following to say:
Now, in considering that question, I think it is very important to bear in mind that the contract in question is not one which was executed before the Registrar. It is not a document like a deed of transfer or a mortgage bond, which is certified and signed by the Registrar himself, and for which, therefore, he is responsible. This is a contract executed before a notary; the parties to it appeared before the notary; and it is he who certifies and signs the contract and who is responsible for it. And I think it is important also to bear in mind that a notary public is a responsible officer of the Court, in whose solemn acts great confidence is reposed. The office of the notary is one not only of great antiquity, but also of great importance. The functions which are discharged by a notary are varied and important, and, as is stated in the passage in Van Zyl quoted by Mr Tindall the presumption is that all proper solemnities have been observed by the notary

That is the reason why the law requires, in so many cases, that a document cannot be registered in the Deeds Office unless it is executed before a notary and it is for that reason that prospecting contracts amongst others require to be notarial. And in respect of notarial contracts, which by law the Registrar of Deeds is required to register in his office, it appears to me that his duty is limited to registering the contract - provided, of course, that the rules and regulations of the Deeds Office have been observed and that the contract is in proper form. It has not been suggested that in this case the rules and regulations of the Deeds Office have not been observed by the notary. The sole objection raised by the Registrar is that the contract is not in proper form. But the considerations which I have mentioned lead me to the conclusion that the question of the capacity of the persons who appear before the notary is one for the notary himself to determine. It is he who has to satisfy himself as to the authority of the persons who appear before him. And if he is satisfied, and has stated as a fact in the contract which is executed in his presence, that the persons who appear before him are duly authorized, then I think the Registrar should presume that the notary has done his duty, and should accept the statements contained in the notarial contract.

That such has been the practice in the past is deposed to by three attorneys of long standing in this Court, who sate on affidavit that "it has been the practice in the Transvaal since the date of the deponent's admission for a notary to satisfy himself as to the authority and capacity of any party who appears before him to execute a deed, and it has not been the practice for registration officers to call upon the notary to supply proof of the authority upon which the notary acted."

The statements contained in these affidavits have not been called into question, and therefore, I think I am justified in accepting them as correctly stating what has been the practice in the past. That, in my opinion, is the correct practice, and if that be so, I do not think that it can be said that this document is not in form. In my opinion, such a document is correct in form when it states that the appearers are the agents of the parties to the contract, "as will appear on reference to powers of attorney, copies of which are filed in the notary's protocol;" and I do not think that it is necessary that it should go further and state that the original powers are filed in the notary's protocol or have been exhibited to him. For, so far as I can see, the only object of making such a statement is to enable the Registrar of Deeds to examine the powers himself, so that he may satisfy himself as to the authority of the persons who appeared before the notary; and in my opinion that is a matter for the notary, and not for the Registrar. (my underlining)

The above extract provides food for thought.

Republished with permission from SA Deeds Journal