Summary
Conveyance Explained Summary notes 2022
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Summary of 56 pages for the course LLB LAW at Unisa (summary notes)
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1STUDY UNIT 1
1. Give a brief description of a notary (PAPASPA)
A public officer, admitted and authorized by the High court to prepare and execute
contracts and other documents and to authenticate public acts under supervision of the
High Court. Only a practicing attorney who has been admitted as a notary may practice
as such.
2. Define Protocol & Protocol Register & distinguish between a protocol and protocol
register
Protocol is the collection of original deeds executed by a notary.
Protocol Register is a register where record of all deeds executed and recorded in
chronological order (date and number)
Protocol is the orderly and safe recordkeeping of all deeds executed and recorded in the
register are kept in a chronological order (by number and date). Documents merely
certified need not be kept nor mere noting, presentation or protest of a bill.
3. What assurance does the public have that a document will be properly prepared when
such a document is prepared by a notary? (5)
A notary is highly qualified and is considered to be an expert in his or her field (1). He or
she must have obtained a prescribed university degree, successfully completed a
prescribed period of articles and must have passed the prescribed practical examination
for notaries (1). He or she must be a practising attorney (1). He or she is an officer of the
High Court (1), admitted by the court and performing his or her duties under the
supervision of the Court (1). The office of notary is held in high esteem and great
emphasis is placed on his or her duty of care and on qualities such as responsibility,
credibility, impartiality and professional integrity (1). A notary is also bound to honour the
code of conduct for attorneys adopted by the Law Society of South Africa (1).
A notary is permitted by the High Court to his office, and suspended by the Law Society
or of its own motion by the court or of the role to be suspended if he is guilty of
unprofessional conduct.
4. Name five documents that have to be drafted by a notary before they would be accepted
for registration. (5
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Antenuptial agreement (1)
Notarial bond (1)
Deeds of servitude (1)
Long-term lease & sub-lease (1)
Cession of these leases (1)
Power of attorney or application or consent required for registration in the deed registry
as well as an agreement between co-owner for partition must be signed by an
attorney/conveyance/notary
A notary accepts responsibility for the accuracy of a document singed and prepared by
him
5. May a notary practise at any place in the Republic of South Africa? Substantiate your
answer and refer inter alia to the Deeds Registries Act 47 of 1937. (7)
The registrar of the High Court keeps a register in which the names and signatures of all
the notaries (and attorneys and conveyancers) admitted in each province, appear.
If a notary wishes to practise in another province than the one where he or she was
originally admitted, he or she has to apply in the prescribed manner to the relevant
division of the High Court.
Any document or act executed by a notary, however, has valid effect anywhere in South
Africa irrespective of the province where he or she was admitted or is practising.
Also note that in terms of the Deeds Act, a notary in respect of a deed or other document
establishing or transferring real rights in land in the Republic of South Africa is a person
who practises as such in the Republic.
A practising notary may thus, specifically for the purposes of the Deeds Act, execute any
act in respect of any deed or document establishing or transferring real rights in land in
the Republic of South Africa, irrespective of the province where he or she was admitted.
6. X is a notary. X's only daughter, Y, is engaged to Z. Z requests his future father-in-law,
X, to draft and execute the antenuptial contract between himself and Z. May X draw up
and execute the contract and would such a contract be valid? How would you advise X?
Substantiate your answer.
Duty of care
• A notary must take upon signing the document; ascertain the identity of those who
document export and signing as witnesses;
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• When person in official capacity act sings the document, the notary must ensure
that the person has the authority to act;
• A notary must satisfy itself regarding the contractual capacity of the parties and
witnesses;
• A notary must act impartially at all times;
• A notary may have no interest in a document he executed or attested to, if there is
an identifiable interest, his demeanour would amount to unprofessional conduct
and the document would be invalid (van den Heever v Kahn)
• He must receive no personal benefit from the documents;
• A notary has a duty to ensure at the parties to a notarial transaction fully
comprehend the content of and the legal principles involved in the documents they
sign, they must consult with the client personally. It has been frowned upon where
a document was signed before a notary by virtue of a power of attorney
• Not a requirement to affix an official seal or stamp, but it has become practice to
do so;
STUDY UNIT 2
7. Name ten important guidelines that a notary has to take into account when drafting
documents. (10)
Professionalism
• A notary must refrain from executing or certifying documents in which he or she has
a personal interest.
• Instructions must be carefully and correctly noted and properly understood by the
notary.
• A notary must satisfy himself of the identity and capacity to act of the parties
appearing before him.
• All information conveyed to a notary by a client is confidential and protected against
disclosure.
• The notary must not only have sufficient knowledge to take instructions from the
client but must also take care to give effect to the true intention of the parties and be
able to set out these instructions in clear, correct and unambiguous language:
• The notary has a duty to explain the legal principles pertaining to a transaction in
plain and clear terms to his or her client to ensure that the client has a proper
comprehension of the legal consequences involved. It is also the duty of the notary
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to ensure that the client has read the document presented to him or her. If the client
cannot read the notary must read the document to the client.
• A document may not contain any blank spaces when it is submitted for final
signature. On signature the document must be complete in all respects.
• The appearer (the signatory) and witnesses must sign the document in each other's
presence and in the presence of the notary.
Formal Requirements
• Apart from the Deeds Act, there are generally no statutory provisions prescribing the
format and structure of a notarial deed.
• Prescribed requirements as to form must, where applicable, be complied with.
• Deeds and documents, prepared by a notary and tendered for registration or filing in
a deeds registry need no preparation certificate as prescribed by the Act. The notary
however assumes the same responsibility for correctness, as does a conveyancer in
terms of the Act, by virtue of the office he or she holds.
• Taking these requirements into account, a notarial deed may be prepared in any
form.
Content
• It shall be so phrased and structured that that the intention of the parties is reflected
correctly, clearly and unambiguously.
• It must be clear, concise and easy to understand, by making use of brief and clear
sentences.
• If an existing draft document or precedent is used as an example on taking
instructions, care must be taken to ensure that it is adapted in all respects to meet
and satisfy the needs of the particular case.
Interpretation
• A basic rule of interpretation regarding the wording of a document is that effect must
be given to the intention of the author (i.e. the parties).
• The heading and preamble to a deed serve as an aid to interpretation of a
document, but they are not predominant if they are inconsistent with the operative
part of the deed
• Words in the margin do not normally form part of a contract.
• An ambiguous word or statement will be interpreted by the courts to the prejudice of
the person in whose favour the document was prepared.
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