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Notes from Study Guide
Notarial Practice (University of South Africa)
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STUDY 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)
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 beween co-owners 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.
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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;
• 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:
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• 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 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.
• A contractual obligation must be defined clearly and must be ascertainable in order to be
enforceable.
• Terms in a contract that confer an unfettered right on one of the parties to determine the
extent of the performance of either party are void on the grounds of vagueness.
• The rule expressio unius est exclusio alterius (``expression of one thing is the exclusion of
the other'') determines that if a special arrangement is made with regard to specific
matters mentioned, matters that are not mentioned are excluded from such arrangement.
• Punctuation plays an important role in the interpretation of a deed.
8. What does the term ``professionalism'' mean in respect of drafting a document? (8)
The integrity and professional independence of a notary are held in very 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. A notary is also bound to honour the code of conduct for
