The Notary Public: An Overview
Origin and Development
The role of the notary has its roots long before Roman times, tracing back to Hebrew, Greek, and Egyptian cultures where scribes, often connected to legal matters, played a crucial role. In Roman society, the tabelliones were clerks responsible for drafting legal documents, holding a high status comparable to modern notaries. Conversely, notarii—from whom the term "notary" is derived—were shorthand writers, often slaves or freed individuals, recording court proceedings. Over time, these notarii rose to prominence, serving as secretaries to emperors, bishops, and judges, tasked with preparing official documents that were indisputable in legal matters. Their role evolved, and notaries began to perform functions akin to those of the judges and bishops themselves.
In South Africa, the notary’s office is based on Roman-Dutch law. Although the exact date of its establishment in the Netherlands is unclear, the notary profession gained formal recognition in 1524. Notaries primarily dealt with preparing legal documents and certifying true copies. The first notary in South Africa was appointed in 1672, and by 1858, the British government introduced legislation regulating the notarial profession. In 1903, legislation stipulated that only attorneys could become notaries, a rule that remains in force today.
Admission, Removal, and Suspension of Notaries
Under South Africa's Legal Practice Act, the High Court is responsible for admitting and authorising individuals to practice as notaries. A person seeking admission must meet several criteria: being an attorney, passing a competency-based exam for notaries, and being either a South African citizen or a permanent resident. Once admitted by the High Court, an individual must apply to the Legal Practice Council for official enrolment.
The High Court also has the authority to cancel or suspend a notary's enrolment. If an attorney is removed or suspended from the attorneys' roll, this action applies equally to their role as a notary.
General Scope of the Office
Certain legal documents can only be drafted by a notary, including antenuptial contracts, long-term leases, servitudes, and notarial bonds. Notaries also handle the protest of dishonored bills of exchange and execute sea protests. In addition, notaries authenticate documents, administer oaths, and certify true copies. Notaries customarily possess a seal of office, which includes their name and the word "notary." This seal is affixed to documents to validate their authenticity.
Although other legal professionals can draft wills, trust deeds, and donation contracts, notaries are often preferred due to their specialised expertise. This professional standing is viewed as raising the standard of legal practice overall.
Place of Practice
A notary admitted to practice under the Legal Practice Act is entitled to work throughout South Africa unless their name is struck from the roll or they are suspended. According to the Deeds Registries Act, a notary is authorised to execute deeds or documents related to real rights in land anywhere in the country, regardless of the notary’s physical location. Other documents requiring notarial execution, such as antenuptial contracts or notarial bonds, may also be prepared by any notary practicing in South Africa.
Duties of a Notary
The role of a notary comes with a reputation for precision and reliability. Since notaries are responsible for creating legally binding documents, they are held to a high professional standard. This responsibility isn't just a formality—it's rooted in public trust, as the validity of the documents a notary signs often holds significant legal weight.
Expertise and Skill
Notaries are specialists in their field, and their expertise is crucial to ensuring the accuracy of legal documentation. They are expected to remain well-versed in the latest developments in case law and legislation. It’s not just desirable; it’s a requirement. A notary cannot claim ignorance when it comes to their field. Should uncertainty arise when advising clients, a notary is expected to conduct thorough research or seek expert counsel before proceeding. This dedication to knowledge ensures that the work produced by a notary is both accurate and legally sound.
Care and Precision
Given the presumption that every statement in a notarial document is true, the creation of these documents demands meticulous attention to detail. Errors or oversights could lead to significant legal repercussions. This level of precision distinguishes notaries from other legal professionals. They cannot afford to overlook the smallest detail, knowing the consequences could compromise the legal integrity of the document.
Confidentiality
The trust placed in notaries extends to the confidentiality of their dealings. Any information shared with a notary is to be treated with the utmost discretion. The relationship between a notary and their client is protected by legal privilege, meaning that sensitive information cannot be disclosed without the client’s explicit consent. This expectation of confidentiality is essential for maintaining trust between the notary and the client, ensuring that personal or business details are safeguarded.
Independence and Impartiality
A notary must maintain independence in their professional conduct. Their advice to clients must be impartial, free from external influences or conflicts of interest. The notary’s role is not to further their own interests, but to serve as an objective third party in legal matters. Any notarial document signed under the influence of a conflict of interest is deemed invalid. This reinforces the need for notaries to remain neutral, providing unbiased legal services.
Conclusion
The office of a notary is one steeped in tradition, but with a modern mandate for excellence and integrity. Notaries are more than just legal professionals with a rubber stamp. They are custodians of public trust, tasked with ensuring that the agreements and contracts people rely on are accurate, fair, and enforceable. Their role requires a fine balance between legal expertise and impartiality, and their responsibilities go beyond the mechanical signing of documents. It is a profession that demands ongoing education, unwavering ethics, and a commitment to the rule of law.