It often happens that an owner of immovable property decides to immigrate to another country. Sometimes the owner will keep the property as an investment and other times they need to sell their property. In the case of a sale of immovable property it is always advisable that the owner signs all relevant transfer documents for the registration of the property before immigrating however, this is not always possible.
In the second case it is suggested that the owner signs a Special Power of Attorney authorising a trusted person in South Africa to sign all the documents on the owner’s behalf before immigrating. This document is lodged in the Deeds Office together with all the other transfer documents. Should this step not be taken, the owner will then have to sign all the relevant transfer documents outside of South Africa.
When a document for use in South Africa is signed outside of South Africa there are two ways in which they should be signed, namely:
- In terms of Rule 63 of the High Court Act 59 of 1959; or
- In terms of The Hague Convention Procedure.
Rule 63 Procedure:
Any document signed outside of South Africa for use inside South Africa can be signed in the following way in terms of this Procedure:
The document is to be duly authenticated by the signature and seal of office: –
- of the 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;
- of a consul-general, consul, vice-consul or consular agent of the United Kingdom;
- of any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country;
- of any person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (a), (b) or (c) or of any diplomatic or consular officer of such foreign country in the Republic to be duly authorised to authenticate such document.
Should the document be signed in United Kingdom of Great Britain and Northern Ireland, Zimbabwe, Lesotho, Botswana or Swaziland the document can be authenticated by a Notary Public practising in that country.
The Hague Convention Procedure:
Since 1995 South Africa is a member of the Hague Convention. Therefore, if the country where the owner will be signing transfer documents is also a member of the Hague Convention the following procedure can be followed:
Authentication of the signed document is done by means of an Apostille attached to the document and must be issued and bear the signature and seal of office by a Competent Authority designated by the country from which the public document emanates.
All the original documents signed outside the country must be couriered back to South Africa for lodgement.
BRONWYN BUTT specializes in Conveyancing and is a Senior associate at Alan Levy Attorneys Notaries and Conveyancers.