It frequently happens that Sellers and, occasionally, Buyers leave South Africa soon after signing the sale contract. It is not enough that they signed the contract fully, they still have to sign their transfer and bond documents as well. Where the Agent discovers that one of the parties is about to emigrate or leave South Africa for some months, it is essential that a Power of Attorney be obtained appointing someone in the country to sign on his behalf. Otherwise, documents can only be authenticated as follows:
- In terms of Rule 63 of the Uniform Rules of Court, the signature of the party has to be authenticated by a South African consular official. This means he must go to a South African Consulate to sign. Imagine how difficult this will be if the person lives far from the Consulate (or, worse still, if there is no Consulate in the country). A document signed before a Notary Public in the United Kingdom will be accepted but, if it is signed before a Notary elsewhere, the Notary's signature has to be authenticated by the local South African Consulate! So, you are back to square one.
- If the Power of Attorney is completed in a foreign language, even if it has been properly authenticated, it will have to be translated in South Africa by a sworn Translator or, where none is available, by anyone else approved by the Registrar. This not only takes time but costs money too.
- If, say, the Seller disappears completely and is known to have left South Africa, the procedure becomes exceedingly cumbersome and costly, to say the least. This happens, for example, when the Seller is heavily in debt and has planned to leave to get away from his troubles. A shortfall is bound to occur on his existing bond and he will have failed to pay his rates for a few months as well. I once had such a transfer which caused numerous difficulties. It took three approaches to the High Court over a period of many months to sort this out. Permission had to be obtained to serve our application by advertisements in a local Sunday newspaper. Proof from the Department of Foreign Affairs had to be furnished that the newspaper circulated in most of South African embassies throughout the world. It took about ten months to finally get registration with heavy legal expenses involved. By the time I received my instruction, the Sellers had already left the country.
By obtaining a Power of Attorney at the time of the sale, all these complications can simply be avoided.
Where someone has signed a document outside of South Africa, which cannot be authenticated by a Consulate, the Registrar can, in terms of Rule 63 (4), accept the document if satisfactory proof can be given that the person has actually signed it. Usually, he will only do this if the signature can be compared with documents filed in the Deeds Office from some prior transaction where the signature also appears. It helps so much to get a Power of Attorney at the same time as the sale.
CREDIT:
Property Law Publications
John Gilchrist
082 904 1300