It is often the case, and even more so with the recent travel restrictions, that sellers and purchasers find themselves overseas during the process that a property is sold. This will not hinder the parties to enter into a valid and binding sale agreement, but practical complications may arise. If the transfer documents (those that must be lodged in the Deeds Office) are signed outside the borders of South Africa, there are strict regulations prescribing how and in whose presence the documents must be signed. There are two methods:
In terms of High Court Rule 63, documents signed in any country outside South Africa must be signed (executed) by the signatories in the presence of the head of the South African diplomatic or consular mission (or other designated official listed in Rule 63). The document must be authenticated by attaching a certificate thereto which bears the seal of office of the head of the South African diplomatic or consular mission (or other official). For a few countries (such as Swaziland, the UK, Zimbabwe, Botswana, Lesotho) the procedure under Rule 63 is slightly simplified in that the document may be signed and attested before a Notary practising as such in that country. The Notary must affix a seal of office to that document.
The second option is for the signatories to sign the documents before a Notary Public in terms of the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. Both countries must be members of the Convention. This option requires that, once signed by the signatories and Notary, the document must be apostilled by a relevant governmental authority (in that foreign country) which has such powers. The format of the apostille is prescribed in the Convention.
Once the documents have been signed and apostilled or authenticated, as applicable, the original signed documents need to be couriered back to the conveyancers for lodgement at the Deeds Office.
A way to avoid the practical complications of the signature of transfer documents abroad is for sellers and purchasers to appoint a trustworthy representative or attorney in South Africa, by way of a Special or General Power of Attorney, to sign the transfer documents locally on their behalf.
Contact our professionals on 041 363 6044 or info@kaplans.co.za for assistance.
