2022 / 08 / 17
Immovable Property Affairs: Do you own immovable property in SA and are you emigrating? Is it your intention to sell your immovable property? Then ensure a smooth transfer without any delays.
It is important to bear in mind your immovable property affairs when you sell your property there will be an offer to purchase and transfer documents that have to be signed by you as the owner of the property. It is ideal that you sign the documents whilst you are still in SA however, it may turn out that you have to leave the country and your property for instance is not yet sold or the transfer may be at such a stage where it is not possible for you to sign the transfer documents, or it may happen that your property is not sold by the time of your departure.
Should circumstances arise where you have to sign documents outside of the RSA for use within the RSA, the following rules will apply for the authentication of your signature:-
Rule 63 of the High Court Rules governs the requirements when documents are signed outside of the RSA for use within the RSA. In terms of Rule 63(2) documents executed in any place outside of the Republic shall be deemed to be sufficiently authenticated for the purpose of use in the Republic if it bears the signature and seal of office of:-
- Of the head of a SA diplomatic or consular mission or a person in the administrative or professional division of the public service serving at a SA diplomatic consular or trade office abroad;
- Of a consul-general, consul, vice-consul, or consular agent of the United Kingdom or any other person acting in any of the aforementioned capacities or a pro-consul of the United Kingdom; or
- Of any government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
- Of any person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (a), (b), or (c) or of any diplomatic or consular offices of such foreign country in the Republic to be duly authorized to authenticate such document under the law of that foreign country; or
- Of a Notary Public in the United Kingdom of Great Britain and Northern Ireland or in Zimbabwe, Lesotho, Botswana, or Swaziland; or
- a Commissioner Officer of the South African Defence Force as defined in section 1 of the Defence Act, 1957 (Act 4 of 1957) in the case of a document executed by any person on active service.
Or, have you ever heard of the Hague Convention or of an Apostille? On 5 October 1961 at the Hague, a number of countries entered into a convention for the abolition of the requirement of diplomatic or consular legislation for foreign documents. On 30 April 1995, South Africa became a party to the Hague Convention. The convention may be used if the country where the public document is signed as well as the country where the document is to be used are both convention countries. The convention provides that the only formality that is required in order to certify the authenticity of a signature, is the addition of a certificate described as an Apostille issued by a competent authority of the state from which the document emanates.
Following these rules are often a costly exercise and may delay the transfer process indefinitely.
A simple solution to avoid these eventualities is to give your attorney or a trusted family member a Special Power of Attorney to sign all the documents on your behalf. Also, a Special Power of Attorney is exactly that, “Special” in that it pertains to a single act. Once registration of your property is affected, the Special Power of Attorney cannot be used for any other purpose and you can have peace of mind that only your immovable property matters have been dealt with.
Should you wish to obtain or have a special Power of Attorney drafted or require a trusted attorney to see to these immovable property affairs for you? Please contact us and we will look after your best interest and guide you through the process.
See our website at www.ltinc.co.za or contact us on 011 472 2828.
