Legal Articles

Most of us have been required to authenticate documents (public or private) at one point or another, so as to validate them before they are accepted.

In as much as it can be frustrating sometimes having to wait in long queues at police stations, or Google the nearest lawyer’s offices, the rationale behind such requirement holds substance.

Authentication of Documents

For time immemorial public documents have been subject to forgery and other such fraudulent activities.

Organised crime syndicates at times use fraudulent public documents which look authentic on face value in order to commit crime.

Even though governments do all they can to safeguard the authenticity of public documents, criminal syndicates have somehow managed to have new tricks up the sleeve.

Public documents include IDs, Qualification Certificates, Administrative and Notarial documents, documents emanating from an authority or an official connected with the Courts or Tribunals of the state etc.

It is therefore necessary with due regards to the above, that authentication to eliminate fraud and forgery of public documents be required without exception.

Authentication of Public Documents

The form of authentication is within the prescription of the country where the documents are to be accepted and used.

This is cumbersome, as so many different countries will have varying validity requirements with regards to how the same documents may be authenticated in order to be acceptable as official and valid for use.

The Hague Convention of 5 October 1961 however, simplifies this process whenever public documents are executed and authenticated in a country that is party to the Convention.

This convention abolished the consular and diplomatic legalisation of public documents issued in countries which are party to the convention.

Authentication of Public Documents for use outside South Africa 

The convention produced what is known as the Apostille Certificate or the Certification of Authentication which must accompany the public documents for acceptance in another country which is a party to the Convention.

Firstly, the public document is signed or executed in front of a Notary Public. Secondly, the Notary Public will attach their Authentication Certificate reflecting their signature, stamp and seal.

Lastly, the Notary Public will forward the documents to the High Court within whose jurisdiction the Notary Public practices after which such division of the High Court issues the Apostille Certificate to authenticate the Notary Public’s signature.

Where the country in which the documents are to be accepted and used is not a party to the convention, the same procedure applies as outlined above but the following further requirements will need to be complied with as well.

After the High Court issues the Apostille Certificate, the documents are forwarded to the Department of International Relations and Co-operation (DIRCO) in Pretoria for legalisation.

From DIRCO, the final step would be accomplished when the documents are sent to the Embassy or Consulate of the country in which the documents are to be accepted and used, for further authentication as per that country’s rules.

Authentication of foreign documents for use in South Africa

Rule 63 of the Uniform Rules of the High Court of South Africa regulates the authentication of public documents executed in a foreign country, for use within the Republic of South Africa. The Rule provides that a document is adequately authenticated if it bears the seal and signature of the following categories of persons;

• a head of a South African diplomatic or consular mission or a person in the administrative or professional division of the public service serving at a South African diplomatic, consular or trade office abroad; or
• a consul-general, consul, vice-consul or consular agent of the United Kingdom or any person acting in any of the aforementioned capacities or a pro-consul of the United Kingdom; or
• any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
• any person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (i), (ii) or (iii) or of any diplomatic or consular officer of such foreign country in the Republic to be duly authorised to authenticate such document under the law of that foreign country; or
• a Notary Public in the: United Kingdom of Great Britain and Northern Ireland (England or Ireland);
  – Zimbabwe;
  – Lesotho;
  – Botswana;
  – Swaziland; or
• a Commissioner Officer of the South African Defence Force as defined in section 1 of the Defence Act, 1957 (Act 4 of 1957) in the case of a document executed by any person on active service.

Namibia is a party to the Hague Convention, and documents executed thereat must follow the formalities of the Convention as documents executed in Namibia cannot be authenticated before a Notary Public.

A power of attorney executed in Lesotho, Swaziland or Botswana to intervene in any legal proceedings in a Magistrate’s Court within the Republic of South Africa, shall not require authentication but that it must be duly signed and be attested to by two competent witnesses.

Van Deventer and Van Deventer Incorporated – Notaries South Africa

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