By Riaan de Jager
A large number of South Africans regularly travel overseas, either temporarily or on a permanent basis where they will have to produce various public documents abroad. This is required in a multitude of cross-border situations, such as –
These types of public documents are essentially documents executed by an authority or a person acting in an official capacity. They thus require authentication before they will be accepted in the country of destination. The purpose of this article is to explain what the authentication of public documents entails and to clarify when and how such documents need to be legalised or apostillised. It is important to note that I will only refer here to the authentication of public documents in the Republic of South Africa (SA) for use outside of SA and not vice versa.
Authentication
In SA a public document may generally be produced and accepted without the need for its origin to be verified. This is based on the common law maxim acta probant sese ipsa, which means ‘documents prove themselves’. This confirms the principle that the origin of the document lies in the document itself without the need for additional verification of its origin. When a public document is produced abroad, however, its origin may require verification. It is unfair to require the person who receives the document to judge the authenticity of the document merely on face value, as the recipient may not be familiar with the identity or official capacity of the person signing the document, or the identity of the authority whose seal and/or stamp it bears. As a result, states require that the origin of a foreign public document must be certified by an official who is familiar with the document. It is against that background that the procedure known as ‘legalisation’ was developed.
Authentication generally refers to the process of verifying or ‘authenticating’ the origin of a public document. It is worth noting that ‘authentication’ is defined in r 63(1) of the Uniform Rules of Court as the verification of any signature on a document.
It seems that the terms ‘authentication’ and ‘legalisation’ are used synonymously or interchangeably and are both utilised to refer to the apostillisation process as well. I submit, however, that authentication is the overarching act of verification, which could be executed by either legalising the document or by apostillising it. As will be explained in more detail below, public documents need to be legalised if either the state where the document originates (ie, the state of origin) or the state where it has to be produced (ie, the state of destination) are not contracting states of the Apostille Convention. If both these states, on the other hand, have either ratified or acceded to the Apostille Convention, the document will have to be apostillised.
Legalisation
Legalisation describes the procedures whereby the signature, seal and/or stamp on a public document is certified as authentic by a series of public officials in SA along a ‘chain’ to a point where the ultimate authentication is readily recognised by an official of the state of destination and can be given legal effect there.
As a practical matter, diplomatic and consular missions of the state of destination located in SA or accredited to the Republic of SA, as the state of origin from which a public document emanates, are ideally situated to facilitate this process. However, such missions do not maintain samples of the signatures, seals and/or stamps of every authority or public official in SA. As a result, an intermediate authentication between the authority or public official that executed the public document in SA and the mission is often required. In most cases, this involves an authentication by the Department of International Relations and Cooperation (DIRCO) and, in particular, its Chief Directorate: Consular Services, who will attach a ‘Certificate of Authentication’ to the public documents.
Depending on the law of the state of destination, a series of authentications may be required before the document can be presented to the mission for authentication. Then, depending on the law of the state of destination, the seal and/or stamp of the mission may be recognised directly by the official in that state, or may need to be presented to the Ministry of Foreign Affairs of that state first for a final authentication.
It is evident that, while differences exist among states, the legalisation ‘chain’ typically involves a number of links that results in a cumbersome, time-consuming and costly process for members of the public who have to produce the relevant documents in the state of destination.
As stated above, a Certificate of Authentication is attached to the public document when a public document is legalised to verify the origin thereof.
I will explain the process by using the following practical example:
Person X intends to relocate to the United Arab Emirates (UAE) and is required by the authorities there to provide proof of their marital status. Since X is divorced, the public document that must be submitted is the divorce order.
The process can be as shown in figure 1 below.
Apostillisation
Since the legalisation process was increasingly seen as a cause of inconvenience for persons and businesses needing to use public documents from one state in situations or transactions taking place in other states, the Council of Europe raised the need for a convention early in the 1950s.
The Hague Conference on Private International Law (HC) then became involved. The HC is a permanent intergovernmental organisation situated in The Hague, Kingdom of the Netherlands, whose purpose it is to work for the progressive unification of the rules of private international law. The HC regularly sets up special commissions that are convened by its secretary-general to develop and negotiate new conventions, known as ‘Hague Conventions’, or to review the practical operation of existing conventions. A special commission is composed of experts designated by members of the HC and by contracting states to a convention. It may also be attended by representatives of other non-member states and relevant international organisations in an observer capacity.
The HC ‘decided to develop a convention that would facilitate the authentication of public documents to be produced abroad’ (Apostille Handbook: A handbook on the practical operations of the Apostille Convention (The Netherlands: The Hague 2013) at I). The final text thereof was approved at the Ninth Session of the HC on 26 October 1960. The Apostille Convention was first signed on 5 October 1961 – hence the date in its full title: ‘The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.’ In accordance with art 11(1) thereof, it entered into force on 21 January 1965, 60 days after the deposit of the third instrument of ratification.
‘The Apostille Convention is [currently] the most widely ratified and acceded to of all the conventions adopted under the auspices of the Hague Convention. It is [currently] in force in over 100 States from all major regions representing all major legal systems of the world, making it one of the most successful international treaties in the area of international legal and administrative co-operation’ (Apostille Handbook (op cit) at 1). A list of the contracting states of the Apostille Convention is obtainable on the website of the HC at www.hcch.net under the Apostille Section.
‘With the rise in cross-border movements and activities as a result of globalisation, the Apostille Convention is expected to continue to grow’ (Apostille Handbook (op cit) at 2). South Africa acceded to the Apostille Convention on 3 August 1994 and it entered into force on 30 April 1995 and thus became a contracting state thereof. It only became a full member of the HC on 14 February 2002.
The purpose of ‘the Apostille Convention abolishes the legalisation process and replaces it with a single formality: The issuance of an authentication certificate, called an “Apostille”, by an authority designated by the State of origin called the “Competent Authority”’ (Apostille Handbook (op cit) at 5). In SA the following has been designated as competent authorities for purposes of the Apostille Convention: Any magistrate or additional magistrate; any registrar or assistant registrar of the High Court and the Chief Directorate: Consular Services at DIRCO.
Again, I will explain the apostillisation process by using the same facts as before, except that Person X will now need to produce the divorce order in Kiev, the capital of Ukraine.
The simplified process established by the Apostille Convention can be illustrated in figure 2 below.
The Apostille Convention simultaneously serves and upholds the same important end result of legalisation: The authentication of the origin of a public document executed in one state and to be used in another state. By introducing a simplified authentication process, the convention facilitates the use of public documents abroad.
The Apostille Handbook (op cit) is designed to assist competent authorities in performing their functions under the Apostille Convention and to address issues that arise in the contemporary operation thereof.
Role of DIRCO
The Chief Directorate: Consular Services at DIRCO is able to authenticate public documents executed within SA for use abroad by means of an Apostille or a Certificate of Authentication. It can also provide clients with guidelines to obtain the correct signatures or documents if documents submitted are incorrect or incomplete. It is, however, important to note that the document that needs to be authenticated should be determined by clients themselves, since DIRCO cannot advise them which documents they need to submit for their particular purposes in the states of destination. More information in this respect can be obtained on DIRCO’s website at www.dirco.gov.za.
Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (UJ) is a Principal State Law Adviser (International Law), attached to the Office of the Chief State Law Adviser (International Law) and the Department of International Relations and Cooperation in Pretoria.
This article was first published in De Rebus in 2018 (Oct) DR 22.
