By Examiner, Gauteng
As a member of both the drafting panel and panel of examiners for notarial papers, I must admit to being somewhat alarmed and concerned about the standard of knowledge of the majority of candidate attorneys (CAs). Looking at the poor results, I can only surmise that either the level of knowledge and competence required of a notary is misunderstood, or the examination is totally underestimated.
The office of a notary is a specialised field, an add-on as it were to the profession of an admitted attorney, and the only legal office held by a South African lawyer that is recognised almost universally, without any further questions. As such it is an important part of our legal ‘make-up’, and its integrity and stature should be protected, in the first instance by keeping the standards for admission to practice as a notary on a level in keeping with the status of the profession and the knowledge and skills expected from a notary.
It may be true that the majority of notaries would for years practice and only attend to ante-nuptial contracts, some authentication of documents and the odd servitude, long-term lease or notarial bond.
Once admitted, however, the notary is authorised to attend to all matters notarial, and he or she should be competent to do so.
Of importance is the weight that our courts not only bestow on, but demand from the office as voiced in a number of court cases.
The purpose of this article is not to extoll the virtues of notaries, but to give some direction to prospective candidates in preparing for the examination. Here are ten points that CAs would do well to remember in preparing for, and sitting for the examination.
- Do not underestimate either the office of a notary nor the skills required to practice as a notary.
- Most notarial deeds require registration in the Deeds Office. Knowledge of the Deeds Registries Act 47 of 1937 (DRA) and its regulations are essential. Drafting the deed without proper regard to the vesting and property descriptions will do you no good.
- Read the question. Make sure you understand what is required of you before you answer. Questions are mostly drafted with the basic information that your client would provide, without knowing (or caring) what specific document would be required, or the format thereof. The question, therefore, as much tests your knowledge of what would be required as the actual drafting thereof.
- Practice your drafting skills. Although the deeds office will not interfere with your document other than with reference to the DRA regulations or requirements, the document should be unambiguous and capable of easy interpretation. Have your principal, partner or study mate look at your drafting.
- Come to a conclusion. It appears that many candidates remember the melody but forget the words: Whereas … and whereas … and whereas … but, ‘no’ or ‘never’. This is the heart of your document and should clearly explain the impact and intent of the document.
- Correctly identify the document in its heading. This shows that you understand what is required to be done, and helps the examiner to follow your logic to the conclusion/object of your document. You actually get marks for the heading.
- Remember that the law attaches a higher degree of understanding by the parties to a notarial document than an underhand document. This is because it is required of the notary to explain the document and is import to the signatories, and it is assumed that the notary has indeed performed this function.
Some questions are, therefore, bound to be asked to test, not only your drafting skills, but also your understanding of certain legal principles, for instance the difference between personal right and personal servitudes.
- The powers that be have decreed that 50% is all you need to pass and a mark of 40% to 49% allows you the privilege of an oral examination. The oral is not a re-examination, in other words, if you pass the oral, it does not necessarily mean that you pass the exam. It is an opportunity to show that you indeed have a clear understanding and rational thought process, and to prove to the examiners that your failure to achieve 50% in the written paper was but an obscurum intervallum, and that had the pressure of writing an exam or the lack of time to think not have numbed your senses, you would have passed the first time. Revisit the questions and answers you gave so that you are able to prove that you know where you went wrong. Do not ignore the written paper in your preparations, although of course questions are not confined to the paper.
- Remember that a notary keeps a protocol in which, inter alia, all documents providing proof of authority of signatories to notarial documents are filed. You should, therefore, also have knowledge of what documents are required to prove such authority (obviously with reference to the founding document of the specific party and/or the underlying applicable statute, for instance the Companies Act 71 of 2008) and how to draft such resolutions.
- The office of a notary requires a sound knowledge of the law in general and a specialised knowledge of matters notarial. This includes knowledge of a multitude of legislation –
– the DRA;
– Income Tax Act 58 of 1962;
– Sectional Titles Act 95 of 1986;
– National Credit Act 34 of 2005;
– Matrimonial Property Act 88 of 1984;
– Wills Act 7 of 1953;
– Companies Act; and
– Subdivision of Agricultural Land Act 70 of 1976, etcetera.
Do not ignore this legislation in your preparation. Good luck.
Examination dates for 2017
Registration for the examinations must be done with the relevant provincial law society.
This article was first published in De Rebus in 2017 (March) DR 10.