Exam (elaborations)
LPL4805 - Notarial Practice Exam Pack
- Institution
- University Of South Africa (Unisa)
LPL4805 - Notarial Practice Exam Pack, Questions and Answers
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1. QUESTIONWhat does the term “professionalism” mean in respect of drafting a document?
1) A notary must refrain from executing or certifying documents in which he or
she has a personal interest. The integrity and professional independence of a
notary are held in very high esteem.
2) A notary must satisfy himself or herself of the identity of the parties appearing
before him or her, and of their capacity to act.
3) Instructions must be carefully and correctly noted and properly understood by
the notary.
4) The notary must, at all times, bear in mind that all information conveyed to him
or her by a client is confidential and protected against disclosure. It must be
treated with the highest degree of respect and secrecy.
5) The notary, as a draftsperson, must not only have sufficient knowledge to take
instruction from the client with regard to a document that has to be prepared,
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.
6) 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.
7) A document may not contain any blank spaces when it is submitted for final
signature. On signature, the document must be complete in all respect.
8) The appearer (the signatory) and witnesses must sign the document in each
other’s presence and in the presence of the notary.
, 2. QUESTION
Under which circumstance may the directives of the Hague Convention, rather
than those of Rule 63 of Supreme Court Rules, be followed in the authentication
of documents?
The directives of the Hague Convention, rather than those of Rule 63, may be
followed if:
i. The document was signed in a member state and
ii. The document is a public document as defined in the convention
iii. The procedure in terms of the Hague Convention is less cumbersome
iv. Than the procedure that has to be followed in terms of Rule 63
This convention simplifies the stipulations in respect of the authentication of public
documents which are used across boundaries of participating states.
Thus a document authenticated according to the regulations of the Convention, will only be
accepted in the Republic of South Africa if it was signed in a member state. If the procedure
in terms of Rule 63 of the High Court Rules is less onerous, that procedure 63 gets
precedence.
The requirements for the convention procedure can by summarised as follows:
1. The document must be signed.
Authentication of the signature is done by means of a certificate ("apostille") affixed to the
document.
The certificate must comply with the following:
a. It must contain the information, and be affixed in the form, as prescribed in sections 4
and 5 of the Convention.
b. The certificate must be in the form of a rectangle of at least 9 cm long.
c. The certificate may be drafted in the language of the issuing authority.
d. It must contain the following heading in French: Apostille (Convention de la Haye du 5
October 1961)
,It must be issued and signed under ratification of the seal of office of any of the
following:
i. any South African diplomat or consular agent in the relevant state
ii. any magistrate or assistant magistrate
iii. any Registrar or Assistant Registrar of the High Court of South Africa
iv. any person appointed by the Director-General of Justice
2. The document need not be signed by witnesses in order to be accepted in the
deeds office (RCR16/2003)
3. The above procedure has to be followed even if the document has been
executed before a notary or authenticated by a notary.
3. QUESTION
You are a practicing notary who has not yet been admitted as a conveyancer, but
you have a good knowledge of conveyancing. You are requested by your client,
company X, to prepare a power of attorney to pass transfer of X’s farm, Uitvlucht, in
favour of the purchaser, B, so that a conveyancer practicing In Pretoria may attend
to the registration of the transfer of the farm into B’s name. Director Y will sign the
power of attorney on behalf of X.
a) What does the Deeds Registries Act 47 of 1937 prescribe with regard to the
signing of the preparation certificate on the power of attorney?
The preparation certificate must be signed by a notary, attorney or conveyancer. If
the power of attorney has been signed by a notary, a practicing conveyancer must
co-sign the preparation certificate, which serves as confirmation that the notary is a
practicing notary. The registrar has the discretion to waive this requirement of the
preparation certificate has been signed abroad.
, b) In terms of the Deeds Registries Act 47 of 1937, for the accuracy of which facts
in the power of attorney does the signee of the preparation certificate on the
power of attorney take responsibility?
The person who signs the preparation certificate undertakes, to the best of his or her
knowledge and after due enquiries have been made, to ensure that Y has been
properly authorized to sign the power of attorney on behalf of the company and that
the following information is correct: B’s name, identify number/date of birth, marital
status and the name and the registration number of the company.
4. QUESTION
X, a company with its head office in Cape Town, own a fleet of delivery vehicles that
it uses for conducting its countrywide business as a general dealer. X has been
granted overdraft facilities by Y, a bank with its head office in Pretoria. X offers its
vehicles and trading stock to Y as security for payment of the outstanding amount
on its overdraft. Y approached you, a notary, for advice:
a) Briefly explain, with reference to the objects of security, what documents you
would prepare in order to provide Y with the best possible form of security.
A special notarial bond in terms of which X’s delivery vehicles are specifically
hypothecated and are each individually described in such a manner that they are
readily recognizable at the time of registration may be registered (in order to fall
within the ambit of the Security by Means of Movable Property Act 57 of 1993).
A special notarial bond
in terms of which the delivery vehicles of X are specifically encumbered and are
described in such a manner that they are easily recognisable on date of registrationmay
be registered in terms of the Security by means of Movable Property Act 57 of 1993.
A general notarial bond
in which X's stock-in-trade (and also his vehicles), are hypothecated in general may also
be prepared and registered.
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