Liesel Greyvenstein & Yolande Smith

It is often necessary to give someone authorisation to act on someone else’s behalf when that someone (the grantor) is out of the country or temporarily unable to manage his or her affairs. This document is referred to as a Power of Attorney.

A General Power of Attorney is by its very nature, used for the same purpose the name implies. It confers general powers from the grantor to the grantee to perform and carry out various legal acts on behalf of the grantor. A special power of attorney on the other hand, serves a specific purpose in that it grants very limited and concise powers to the grantee. In other words, it relates to a specific act or acts and nothing else.

For property transactions, the originally signed Power of Attorney must be lodged in the Deeds Office together with the transfer documents (if the Seller gave Power of Attorney) or bond documents (if the Purchaser gave someone else Power of Attorney.)

A General Power of Attorney can also be registered in the Deeds Office which can then be used for future property transactions where the Seller is selling. It is important to note that a General Power of Attorney must be drafted with some degree of caution due to the wide variety of powers it confers from grantor to grantee.

For conveyancing purposes, the attorney who drafted the Power of Attorney must sign the preparation clause indicating that a qualified conveyancing attorney has, amongst other things, verified the identity and contractual capacity of the grantor. If the grantor is lucid but cannot sign as a result of a physical impairment, the attorney must be present at the time of signature and must add a certificate confirming that the mark or thumbprint is that of the grantor.

In order for a Power of Attorney to be valid, it must clearly describe and identify the grantor and grantee as well as the extent of the power conferred upon the grantee. It must be signed by the grantor and 2 witnesses and will remain valid until such time as it is revoked, when the mandate is completed or where the agent or grantor passed away, is sequestrated or becomes mentally unfit. This highlights the most common misconception regarding powers of attorney: A power of attorney is no longer valid when the grantor is not lucid.                                                                                                                      
Further, the persons signing as witnesses cannot derive any benefit from the Power of Attorney. It is also important to bear in mind that banks generally do not accept Powers of Attorney other than their own special documentation for purposes of financial transactions.

It is furthermore prudent to note the following with regard to powers of attorney signed in one country for use in another. Powers of attorney and affidavits signed outside South Africa for use in South Africa must be authenticated as set out in Rule 63 of the High Court; or as stipulated in the “Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents” (The Convention).

Rule 63 provides that any document executed in any country other than South Africa is deemed to be sufficiently authenticated for use in the Republic if it has been duly authenticated (by means of a certificate attached to the document), at such foreign place by the signature and official seal of the South African Embassy.

Rule 63(2)(e) furthermore specifically applies to only Botswana, The United Kingdom of Great Britain and Northern Ireland (England or Ireland), Lesotho, Swaziland and Zimbabwe. In terms of this exception the signatory must sign the document and a Notary Public practising as such in that country must identify the signatories, sign the document and affix his/her seal of office to the document.

If the country in which the grantor is situated is a signatory to the statute relating to the signing of documents in terms of the Hague convention, the documents must be authenticated according to the Apostille process. The Apostille is a uniform international document and the Notary public assisting with the signature of the document will be in a position to advise you regarding what must be done in order to obtain an Apostille after you have signed the documents with them. If the country is not part of The Hague Convention relating to the signature of documents, the documents would then have to be signed at the South African Embassy who will attach a certificate of authentication.

Due to the stringent requirements (and cost) for the authentication of documents signed in another country it is therefore highly recommended that you sign a Power of Attorney before leaving South Africa if you expect to have documents signed.

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Property transfers