Notary public

Allen West: “Merely a reminder to all Notaries of the stern words by Judge Satchwell:

“In short, I thoroughly deprecate notarial contracts entered into before a notary public by an agent of parties who never meet and do not   themselves appear before the notarypublic. I do not believe that this is in the best interests of the contracting parties, the notary public or the general public.””

EX PARTE MOODLEY AND ANOTHER;
EX PARTE IROABUCHI AND ANOTHER 2004 (1) SA 109 (W)

Citation           2004 (1) SA 109 (W)  

Case No          22876/02 and 20450/02          

Court   Witwatersrand Local Division           

Judge   Satchwell J      

Heard  March 4, 2003 

Judgment        March 4, 2003 

Annotations    Link to Case Annotations       

Flynote : Sleutelwoorde

Husband and wife – Proprietary rights – Ante- and postnuptial contracts – Postnuptial registration of antenuptial contract in terms of s 88 of Deeds Registries Act 47 of 1937 – Practice whereby person, authorised by power of attorney, appears before notary public to enter into nuptial or antenuptial contract on behalf of his or her principal(s) – Practice, whereby nuptial contract registered when notary public never met, consulted with, nor personally attested signature of contracting parties, deprecated – Parties applying for registration of nuptial contract who had authorised agent to appear before notary as described  I  above given leave to redraft their proposed contract, indicating, inter alia, that they themselves would appear before notary public and sign their antenuptial contract in his or her presence. 

Notary public – Role and functions of – Attestation of notarial deeds – Attestation of antenuptial contract only by notary as prescribed by s 87(1) of Deeds Registries Act 47 of 1937 – Office of notary special one enjoying high regard – Notary having special responsibility towards parties intending to enter into antenuptial contract – To make sure that document as drafted reflecting wishes, understanding and intent of both parties  Practice whereby nuptial contract registered when notary public never met, consulted with, nor personally attested signature of contracting parties deprecated. 

Headnote : Kopnota

The Court, in delivering its judgment in two applications for the postnuptial registration of antenuptial matrimonial contracts, remarked on the importance of the role of the notary public and deprecated the practice whereby nuptial contracts are registered when the notary had  never met, consulted with, nor personally attested the signature of the contracting parties. In both the instant cases the notary had been absent or intended to be absent at crucial moments in the creation and conclusion of the documents regulating the parties’ marital regime. The prepared documents did not provide that the contracting parties should actually appear before the notary who was to attest the document and see to its registration. Instead, it was stipulated that the parties would sign a power of attorney authorising someone else to appear before the notary public and sign the nuptial contract as their agent. 

Held, that it was clear from s 87(1) of the Deeds Registries Act that only a notary public could attest a nuptial contract. (Paragraph [8] at 113D/E – E.)

Held, further, that the office of notary enjoyed high regard, but was also subject to strict norms. When a notary was employed to draft a document, the public should enjoy a number of safeguards arising from the additional examination undertaken and qualification obtained, the control and discipline of the Court, and his liability for damages where a document had not been drawn with the required skill. (Paragraph [9] at 113F/G – H.) 

Held, further, that the crucial significance of using a notary in the drafting, attesting and registration of a notarial deed such as a nuptial contract lay in the public nature of the document and the need for the public to be able to rely on the accuracy and lawfulness of the document in significant respects. These included the date on which it was signed, the identity of the contracting parties, the authenticity of those who have signed the document, the status of the contracting parties, the place of execution as well as compliance with legal and procedural requirements pertaining to both content and registration. (Paragraph [10] at 113I – 114B.) 

Held, further, that in the case of nuptial contracts there were additional compelling reasons why only a notary was permitted to attest such contracts and attend to registration of same in the Deeds Office. Nowadays intending spouses were able to choose to be married in or out of community of property; there were a multiplicity of provisions which might be applicable to the marriage, such as those pertaining to an accrual system, exclusion or inclusion of assets and the identity and value thereof, inheritance, donations, trusts, business affairs, termination of marriage, maintenance and so on. These were all important decisions that could not be taken by the uninformed or ill-informed. (Paragraphs [14] and [16] – [17] at 115A – A/B and C/D – D/E.) 

Held, further, that the required advice and guidance should be provided only by a notary. After all, it was only a notary who had the necessary qualification and was admitted by the High Court to attest and register notarial contracts. This was the only officer of the Court who was certified as having a complete grasp of the laws relating to the proprietary consequences of marriage and the rights and obligations of spouses inter se and towards third parties. (Paragraph [17] at 115D/E – F.) 

Held, further, that, when an authorised agent appeared before a notary on behalf of the parties, the notary did not know whether the parties fully 2004 (1) SA p111 understood the nature and consequences of the contract into which they had entered. The notary’s duty was to be assured that the contracting parties fully understood the nature and consequences of the contract into which they had entered, but they were not present before him or her. Thus the notary could not assume that the agent had fully and adequately precognised the contracting parties nor that the specific contract attached to the power of attorney had been fully understood, or that it reflected the views of the parties on all possible options available to them within the chosen matrimonial regime. (Paragraphs [20] – [21] at 115I – 116D.)

Held, further, that it was essential that the notary public assure himself or herself that the document as drafted reflected the wishes, the understanding and the intent of both of the parties. (Paragraph [23] at 116G/H – H.) 

Held, further that, in both the present cases the notary was not entitled to rely on the assurance of the contracting parties’ agents. In such circumstances the notary was unable to affirm that the message to the outside world, as contained in the nuptial contract, was correctly given by the parties and relayed and guaranteed by the notary public himself or herself. The general public, who relied upon notarial documents, might find their trust and confidence misplaced. (Paragraphs [24] and [26] at 116H – H/I and 117C – C/D.) 

Held, accordingly, that the Court thoroughly deprecated notarial contracts entered into before a notary public by an agent of parties who had never met and had not themselves appeared before the notary public. This was not in the best interests of the contracting parties, the notary or the general public. (Paragraph [27] at 117E – E/F.) 

The parties were given leave to redraft a nuptial contract which met the requirements of the Registrar of Deeds and which provided that the parties would themselves appear in person before and sign the document in the presence of the notary. (Paragraph [28] at 117F/G – I.) 

Cases Considered

Annotations

Reported cases 

Gade’s Assignees v Weijer and Others 1917 AD 463: referred to 

Hymie Tucker Finance Co (Pty) Ltd v Alloyex (Pty) Ltd 1981 (4) SA 175 (N): referred to 

Perlman v Zoutendyk 1934 CPD 151: referred to 

Silver Garbus & Co (Pty) Ltd v Teichert 1954 (2) SA 98 (N): referred to 

The Cape of Good Hope Bank v Fischer 4 SC 368: referred to 

The Transvaal Land Co Ltd v Registrar of Deeds 1909 TS 759: referred to. 

Statutes Considered

Statutes

The Deeds Registries Act 47 of 1937, ss 87(1) and 88: see Juta’s Statutes of South Africa 2002 vol 6 at 2-67. 

Case Information

Applications for the postnuptial registration of antenuptial contracts. The facts and issues appear from the reasons for judgment.

The names of the applicants’ counsel and their instructing attorneys were not supplied to the editors. 

Cur adv vult. 

Postea (March 4). 

Judgment

Satchwell J: 

Introduction 

[1] These are two applications for registration in the Deeds Office of nuptial contracts subsequent to marriage. The judgment comments on the importance of the role of the notary public and deprecates the practice whereby a nuptial contract may sometimes be registered when the notary public has never met, consulted with, nor personally attested the signature of the contracting parties. 

In Ex parte Moodley (case No 22876/02) the applicants had signed a nuptial contract prior to their marriage which had not been registered within the prescribed period. They have now prepared a further document which they desired to be registered, in terms of s 88 of the Deeds Registries Act 47 of 1937, as a nuptial contract executed subsequent to the marriage. 

1 The Registrar of Deeds has advised that the appropriate section to be invoked is s 87(1) of the Deeds Registries Act which authorises this Court to extend the period prescribed for registration of an antenuptial contract. 

2 Mr and Mrs Moodley now ask that the original antenuptial notarial contract be registered by the Registrar. 

[2] In Ex parte Iroabuchi (case No 20450/02) the parties did not enter into a contract prior to their marriage and have given satisfactory reasons for failing to execute the documentation which would have ensured the matrimonial regime which they had intended. Mr and Mrs Iroabuchi have now prepared a notarial contract that complies with the recommendations of the Registrar of Deeds. The applicants seek an order that this notarial contract be registered in terms of s 88 of the Deeds Registries Act.

Absence of notary public 

[3] In both these cases it is significant that a notary public was absent or is intended to be absent at certain crucial moments in the creation and conclusion of the documents regulating the marital regime of these parties. 

[4] In neither of these applications do the documents prepared (either the antenuptial contract signed by Mr and Mrs Moodley or the notarial contracts intended to be signed upon the Court order by both Mr and Mrs Moodley and Mr and Mrs Iroabuchi) provide that any of the contracting parties should actually appear before the notary public who would attest the document, file it in a notarial protocol and procure registration in the Deeds Office. 

Role of notary public

[5] The spouses have all attended an attorney’s office where they have indicated that they want to be married out of community of property and not subject to the accrual system. Advice has been given to both couples in respect of the matrimonial regimes which they have now chosen and appropriate documents have been drafted. The documents envisage that both Mr and Mrs Moodley and Mr and Mrs Iroabuchi would sign a power of attorney authorising someone else, as their agent, to appear before the notary public and thereafter signing the nuptial contract. 

[6] I have grave reservations and strongly deprecate such practice. 

The role of the notary public

[7] A notarial document is distinguished from other documents, which are known as ‘underhand’ documents, and is defined in the Deeds Registries Act as: 

            ”'(N)otarial deed” means a deed attested by a notary public, and does not include a document a signature to which is merely authenticated by a notary public, or a copy of a document which has been certified as correct by a notary public.’ 

[8] Section 87(1) of the Deeds Registries Act prescribes that only a notary public may attest a nuptial contract. No one may practise as a notary unless so permitted by a competent Court and the requirements for so practising include entitlement to practise as an attorney, the absence of any proceedings to strike the attorney’s name off the practising roll and the successful completion of an examination in respect of the practice, functions and duties of a notary (see the relevant section of the Attorneys Act 53 of 1979).

[9] The office of notary public, having been so singled out, is thought to ‘be a special office which enjoys high regard but which is also subject to strict norms in respect of the duties involved and the standard of conduct expected of the incumbent of such office. Much emphasis is placed on characteristics such as impartiality, credibility, responsibility and independence’ (F E Van der Merwe Notarial Practice). When a notary is employed to draft a document, it is suggested that the public enjoy a number of safeguards arising from the additional examination undertaken and qualification obtained, the control and discipline of the Court and liability for damages where a document is not drawn with the required skill. 3 The result is that the public should be satisfied that the notary public is a fit and proper person with a sound knowledge of notarial duties, subject to sanction on misconduct or negligence and part of a tradition of honesty and reliability. 

[10] I believe that the crucial significance of using a notary public in the drafting, attesting and registration of a notarial deed such as a nuptial contract lies in the public nature of the document and the need for the public to be able to rely on the accuracy and lawfulness of the document in significant respects. These include the date on which it was signed, the identity of the contracting parties, the authenticity of those who have signed the document, the status of the contracting parties, the place of execution as well as compliance with legal and procedural requirements pertaining to both content and registration. 

[11] An essential component of such public documents is that they convey information about the contracting parties and their relationship to members of the public on the basis of which the public are entitled to conduct their affairs with regard to such contracting parties. Our Courts have relied on Voet 22.4.5 and Van der Linden vol I para 115 of ‘Notaris ambt’ to the effect that there is a presumption that the allegations in a notarial deed are true.

[12] Van der Merwe comments: 

            ‘The most obvious reason why the office of notary is singled out as such lies in the fact that the notary, as an independent person, transmits acts performed by parties to other persons and that the latter must be able to rely on the accuracy of such information’ 

(at 6), and 

            ‘he is instrumental in transmitting contractual actions by means of legally enforceable notarial deeds executed before him, to third parties, with the latter being able to rely on the accuracy of such information’

(at 12), while Elliott refers to the presumption that 

            ‘when a document is executed before a notary there is a presumption that every statement contained in the document is true and that all the proper solemnities have been observed by the notary public, which presumption can only be rebutted by clear proof to the contrary’. 

(At 2.) 

[13] In Hymie Tucker (supra) Didcott J declined to read too widely into this rule, stating:

            ‘The reasons for the presumption, as I understand these, tend to suggest that the statements it governs must be confined to those which either emanate from the notary himself and testify to what happened before him or are the sort he is expected to have personally verified. Declarations about the deed’s execution, about the occasion’s formalities, about the documents then exhibited, the proofs of authority produced, the information thus elicited, for instance, all fall into that category. The contract’s internal references to the nature or characteristics of property it happens to feature hardly do. Seldom can the notary vouch for these. Nor, by and large, does he make an effort to do so. Such details have no bearing on the execution of the deed to which he must see. They do not concern him or impinge on his functions.’ 

Notary public and antenuptial contracts 

[14] I believe that, in the case of nuptial contracts, there are additional compelling reasons why only a notary public is permitted to attest such contract and attend to registration of same in the Deeds Office. In this regard I am mindful of my own 16 years’ experience as a practising notary public.

[15] Parties who choose to enter into a marriage do not always realise that they are making provision not only for a lifetime of marriage but also possibly for divorce and probably for death. They have to plan and prescribe how their matrimonial regime will be regulated both during the marriage and subsequent thereto.

[16] Intending spouses nowadays have many choices. They may choose to be married in or out of community of property; there are a multiplicity of provisions which may be applicable to the marriage – provisions pertaining to an accrual system, exclusion or inclusion of assets and the identity and value thereof, inheritance, donations, trusts, business affairs, termination of marriage, maintenance and so on.

[17] These are all important decisions which cannot and should not be taken by the uninformed or ill-informed. Advice and guidance is obviously required and, in my view, should be provided only by a notary public. After all, only a notary public has obtained the necessary qualification and been admitted by the High Court to attest and register notarial contracts. This is the only officer of the Court who has been certified as having a complete grasp of the laws relating to the proprietary consequences of marriage and the rights and obligations of spouses inter se and towards third parties.

[18] Elliott suggests that ‘(i)t is the notary’s duty to explain and make certain that the intended consorts fully appreciate and understand the differences between the marriage in community of property and a marriage out of community of property and profit and loss, with or without the accrual system and the inumerable variations which are possible’ (at 61) and Van der Merwe states ‘the notary must satisfy himself that the parties who sign a   document in his presence understand the implications thereof’ (at 16). 

[19] Although the parties are obliged to sign the nuptial contract in the presence of the notary public, it frequently happens that the parties appoint an agent to appear on their behalf before a notary. I suspect such an arrangement is usually made for the convenience of the parties’ attorney, who is not qualified and admitted as a notary public. The notary public before whom the attorney appears must be satisfied that the agent is authorised to sign on behalf of the contracting parties.

[20] In such circumstances the notary public who executes the contract would not know whether the parties fully understand the nature and consequences of the contract into which they have entered. Van der Merwe comments ‘when a person signs in a representative capacity . . . the notary is then obliged to accept that the agent’s principal is in fact fully cognisant of the content of the mandate and understands the implications thereof’ (at 16),  while Elliott suggests that where one or both of the intended spouses is represented by an agent, ‘it is essential that the authority of the agent be to enter into a contract in specific terms’ (at 61). 5 

[21] I do not think that the above assumption (vide Van der Merwe) or the above precaution (vide Elliott) resolve the difficulties which arise. On the one hand the duty of the notary public is to be assured that the contracting parties fully understand the nature and consequences of the contract into which they have entered, while on the other hand only an agent is present before the notary public and not the contracting parties themselves. With respect, the notary cannot assume that the agent has fully and adequately precognised the contracting parties, nor that the specific contract attached to the power of attorney is fully comprehended by or reflects the views of the parties on all possible options available to them within the chosen matrimonial regime. 

[22] In the circumstances of the two applications before me I do not see how any notary public could be so satisfied that each of the contracting parties has been fully apprised of the matrimonial regime into which they are entering and the consequences of the document which they have signed or propose to sign. The notary public has not met either Mr and Mrs Moodley or Mr and Mrs Iroabuchi. The notary public has not explained to any of them the various options open to them with regard to matrimonial regimes and the multiplicity of variations which may be included therein. The advantages and disadvantages thereof have not been discussed and outlined by the notary public. The comprehension of the parties as to the implications of their contract have not been assessed by the notary public. The notary public has not ensured that the parties appreciate the impact of the contracts upon themselves individually or as a couple, on any future children, descendants or their families. 

[23] I note that the document prepared in the case of Mr and Mrs Moodley is not a standard form. As a fairly detailed document it is to the credit of the attorney who prepared it. I still question whether the notary public can, without meeting the parties, be satisfied that both Mr and Mrs Moodley fully understand it. It is essential that the notary public assure himself or herself that the document as drafted reflects the wishes, the understanding and the intent of both the parties. 

[24] In both cases, the notary public proposes to rely on the assurance of the third party, the agent of the contracting parties. For the reasons I have given above, I do not think that the assurance of their respective agents should be sufficient to satisfy the notary public in the discharge of his or her duties.  

[25] It is not inconceivable that a husband and wife may be in dispute and, one or both not desiring the consequences of their nuptial contract, blame both the notary public and their agent. It would be highly undesirable for a notary public to find himself or herself in the position where one or both contracting parties say they never signed such a contract, did not contract on such a date or at such a place, never knew what they were signing, did not intend that which is contained in the document, did not understand what is contained  therein, that the document was never explained to them and that they do not wish to be bound thereby. 

[26] In such circumstances the notary public cannot affirm that the message to the outside world, as contained in the nuptial contract, was correctly given by these parties and relayed and guaranteed by the notary public himself or herself. The general public, who rely upon notarial documents, might find their trust and confidence misplaced. The contracting parties might incur considerable cost in setting aside the contract. The notary public may be held liable to damages to any person who has suffered loss as a result of professional negligence.

Conclusion 

[27] In short, I thoroughly deprecate notarial contracts entered into before a notary public by an agent of parties who never meet and do not themselves appear before the notary public. I do not believe that this is in the best interests of the contracting parties, the notary public or the general public. I can think of no reason to justify such deviation from notarial responsibilities where there is no urgency with regard to execution of the nuptial contract and there is no shortage of admitted, practising and available notaries public.  

[28] In the result I order as follows: 

            1.         In the matter of Moodley v Moodley (case No 22876/02) the matter is postponed sine die. The parties are given leave to redraft a nuptial contract which meets the requirements of the Registrar of Deeds as set out in his report and which document  provides that Mr and Mrs Moodley will themselves appear in person before and sign the document in the presence of the notary public. The applicants may return to Court on the same papers duly amplified as necessary. 

            2.         In the matter of Iroabuchi v Iroabuchi (case No 20450/02) the application is postponed sine die. The parties are given leave to redraft a nuptial contract which meets the requirements of the Registrar of Deeds as set out in his report and which document provides that Mr and Mrs Iroabuchi will themselves appear in person before and sign the document in the presence of the notary public. The applicants may return to Court on the same papers duly amplified as necessary.

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