Notarial deeds were initially drawn up by the secretaries of the Council of Policy and the Court of Justice. In 1779 and again in 1782 the Cape colonists requested the appointment of notaries with instructions on the execution of their duties. During the visit of the Commissioners-General, Nederburgh and Frykenius, the secretary of the Court of Justice, Johannes Daniel Karnspek, and the secretary of the Council of Policy, Pieter Hendrik Faure, were honourably discharged from the Company’s service and allowed to practice as notaries from April 1793.
Although initially only two notarial practices were permitted in Cape Town, the number of notaries grew in time to, for example, six in 1823.
According to the instructions issued by Nederburgh and Frykenius notaries were to be trained according to the laws and customs applicable to the notarial office in Holland. Notaries were required to be honest and sincere and before being allowed to practice, a sum of 1000 rixdollars was to be deposited as security against any possible claims for damages which could be brought against them.
A notary was required to keep a protocol and register of all deeds drawn up by him. These protocols were to be examined six-monthly by the commissioners of the Court of Justice to ensure that all deeds had been drawn up correctly and all stamp duties paid. Except in cases where irregularities occurred, the commissioners were not empowered to read the deeds. The Court of Justice could also order a notary to lay his deeds before them for inspection. On ceasing to practice or on his death, the notary or the executors of his estate had to hand his protocols and register to the secretary of the Court of Justice for safe-keeping.
The inspection of protocols by the commissioners of the Court of Justice fell into disuse in 1828 but was re-introduced on 15 March 1844.
From March 1845 each notary was to keep a protocol and register in which each of deeds was to be noted in its final form. The deeds were to be inspected twice annually to ensure that they conformed to the legal requirements.
A proclamation of 24 December 1807 had indicated the stamp duties applicable to all deeds and declared deeds drawn up without the correct stamps to be null and void. From 1815 notaries who drew up deeds contrary to the stamp duty specifications were liable to fines.
In 1864 and 1870 statutory provisions were made for the use of stamps on notarial deeds.
Duties of a Notary Public in South-Africa:
Every notary must keep a protocol and a register. The “minutes” (or originals) of every deed passed before him or her must be placed in chronological order and consecutively numbered in the protocol and an entry to that effect made in the protocol register. The documents in the protocol must be indexed and bound from time to time. The protocol must also be kept in a safe place. However, this does not include cases where he or she merely authenticates signatures or the correctness of a copy, or a noting slip in respect of a dishonoured bill of exchange
Notaries must exercise great skill in the performance of their functions, and their office is regarded as one of great responsibility. The notary must observe all the solemnities attached to the execution of documents, exercise more than ordinary skill in drafting notarial documents and supervise every function or step thereof personally.
For documents which are intended for registration in a deeds office certain formalities must be complied with and they are to be observed by notaries (quality of paper, ink, margins, blank spaces, initialling of sheets, alterations and insertions).
The notary must also observe certain formalities in regard to the execution of documents. The document must be read over and explained to the parties appearing before the notary. There must be at least two competent witnesses to a notarial document and the notary must either see the parties actually sign or else the parties must acknowledge their signatures in the presence of the witnesses. The notary must also satisfy himself or herself as to the identity and the competency of the parties, for example where persons are acting on behalf of others, or on behalf of companies, the notary must satisfy himself or herself that they are authorised to do so.
The notary must comply with certain requirements in connection with the contents of documents, such as giving a full and accurate description of the parties, their date of birth and status, if the deed is to be registered, and the ending of the document.
It is the duty of the notary to see to it that the original is stamped with the proper duty and that the copies are also stamped with the duty. If the notarial deed is not properly stamped the notary is personally liable.
The notary must show the highest degree of good faith in his or her dealings with the public and his or her general conduct and behaviour in and outside of work must be of the highest order. He or she must observe the utmost secrecy in regard to the affairs of his client.
The Documents:
This ever-growing and living archives is regularly supplemented by the protocols of retired/deceased notaries in the Cape Division which are transferred by the Registrar of the High Court to this archives repository.
The archives of each notary is listed under his name in chronological order.
