Would it be acceptable for a representative agent to appear before a Notary Public in order to execute the relevant attested documents relating to a notarial agreement?
Generally, the parties to a notarial deed are not required to appear before the notary, and instead appoint a representative granting them Power of Attorney to act on their behalf.
An example of this was seen in the cases of Ex parte Moodley and Another and Ex parte Iroabuchie and Another 2004 (1) SA 109W, where such a representative appeared before the Notary Public for the execution of an Antenuptial Contract.
However, this was scrutinized by the judge who felt there was no proof of urgency to justify the absence of the parties involved.
Also, the court felt that perhaps the notary public may not know whether both parties to the contract fully understand the nature and consequences.
The notary public could not guarantee that both parties to such a marital contract actually had a complete grasp of the processes involved in the marital system.
Because the acting representative never met with the parties, the parties were not made aware of the various different options that were available to them with regards to this system.
If a notary were to go through with the actual execution of the contract in such a case, they would be at risk because either of the parties, if not both of them, could simply deny signing the document or claim that they didn’t know what it was they were signing, that they did not agree with what was contained in the document or that it wasn’t fully explained to them and so they would not want to be bound in accordance with said contract.
Situations, where parties to a notarial contract appoint a representative in order to sign on their behalf, have been found to be unacceptable in the opinion of the court.
The importance of the obligations of the Notary are clearly highlighted, especially when notarising contacts which results in presumptuousness with regards to the accuracy of said contract. This also allows for public reliance.
When going through with a notarial contractual agreement, it is crucial for both parties to be present for the signing and representatives should only be used as a last resort in the event of an emergency or urgency that can be proved to show that they were not able to be present for the finalising of the agreement.
A case between Incorporated Law Society v Kantor 1914 TPD 510, De Villiers JP stressed on the importance of the duties of Notaries how these duties are strictly personal to the parties involved.
The warnings that were given in the two cases in this article emphasise the important role that is played by the office of the Notary Public and it should be something that Notaries abide by so as to prevent complications that could potentially arise due to unforeseen circumstances relating to the parties involved.
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