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Power of Attorney

17 June 2004

In terms of case law the office of a Notary is a very responsible one. The following judicial remarks confirm this statement:
Transvaal Land Bank v The Registrar of Deeds 1907 TS 759 at 764
" ... the presumption is that every statement contained in a notarial deed is true and that all proper solemnities have been observed by the Notary".

Incorporated Law Society v Swan 1911 CPD 874 at 877
"The court, and the public generally, repose the utmost faith in Notaries."

Incorporated Law Society of the Transvaal v Kuyper 1925 TPD 760 at 764
"... the greatest confidence and trust is reposed in any document executed by a Notary".

Given the above judicial remarks, it has always bothered me that most notarially executed instruments are executed on grounds of a special power of attorney afforded by the parties to the notarial deed, i.e. dominant and servient owners of land, parties to an antenuptual agreement, lease agreements, etc.

My concern was supported by Judge Satchwell in the unreported case of Ex parte Moodley and Ex parte C Iroabuchi 2003 JDR 0254 (W), Case No. 22876/02 and 20540/02 (judgment delivered on 4 March 2003).

In the said judgment the practice of appearers or agents appearing before a Notary is strongly opposed. In paragraph 6 of the judgment the learned judge has the following to say regarding the above:
"I have grave reservations and strongly deprecate such practice."

Further, in the judgment the judge also alludes to the importance of the office of a Notary as referred to in the above case law.

From a deeds registry point of view this judgment does not affect the practice as such, but it is hoped that the legal fraternity will take cognisance of the judgment and uphold the office of the Notary as it was at the turn of the previous century.

Republished with permission

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