The Essentials
What Is a Notary? And Why Does It Matter?
A notary public is an attorney who has completed an additional post-graduate qualification and been separately admitted by the High Court to practise as a notary — a distinct professional status from being admitted as an attorney alone.
Notarisation is not just a stamp. A notary verifies identity, consent and legality before attesting a document — which is precisely why documents prepared or executed before a notary are generally accepted anywhere in the world without further question.
Notaries are authorised by the High Court of South Africa to draw up and attest certain contracts and documents, and to authenticate documentation intended for use both inside and outside the country. Certain classes of document have no legal effect at all unless executed before a notary — an antenuptial contract is the clearest example.
Notarial Deeds
Documents that must be drawn and executed before a notary to be legally effective — including antenuptial contracts, notarial bonds and certain servitudes.
Authentication
Certifying documents for international use, including apostilles and legalisation, so they are recognised by foreign authorities.
Protocol & Safekeeping
Notaries keep a protocol and register of every document they draft and attest, providing a permanent, traceable record.
Not every attorney is a notary. Only attorneys who hold a separate notarial qualification, and have been admitted as such by the High Court, may perform these specific functions — always confirm this status before relying on someone for notarial work.
The Choice Every Couple Makes
Antenuptial Contracts & Matrimonial Regimes
An Antenuptial Contract (ANC) is the legal document that determines how a couple's assets are owned during marriage, and how they will be treated on divorce or death. Every couple makes this choice — whether deliberately or, by doing nothing, by default.
| Regime | How Assets Are Treated |
|---|---|
| In Community of Property (default) | No ANC signed. Spouses share a single joint estate — assets, income and debts pooled together, generally shared equally |
| Out of Community, Without Accrual | ANC excludes the accrual system. Estates remain fully separate throughout the marriage and on divorce |
| Out of Community, With Accrual | ANC applies the accrual system. Estates stay separate, but the growth in each spouse's estate during the marriage is shared on divorce or death |
If you don't sign an ANC, you are automatically married in community of property. Parties who marry without an antenuptial contract are deemed, by law, to be married in community of property — with joint and several liability for each other's debts, among other consequences many couples don't fully appreciate until much later.
An ANC isn't a sign of distrust — it's a deliberate, informed choice about how two people's finances will work together, made while both parties can think clearly rather than under the pressure of a dispute years later.
Timing Matters More Than You'd Think
Signing Your ANC Before the Wedding
An antenuptial contract has no effect whatsoever unless it is executed before a notary — and, critically, it must be signed before the marriage takes place. Once the wedding has happened, it is too late to sign an ANC; a different, more complex legal process (a postnuptial arrangement, discussed below) becomes necessary instead.
Consultation With Your Notary
Both parties meet with the notary, in person or online, to be properly advised on the available matrimonial regimes and the implications of each choice.
Drafting the Contract
The notary drafts the ANC to reflect the couple's specific instructions, including whether the accrual system will apply and any excluded assets.
Execution Before the Notary
Both parties sign the contract in the physical presence of the notary, who verifies identity and consent and attests the document.
Registration at the Deeds Office
The signed ANC must be registered at the Deeds Office within three months of signature to remain valid and effective against third parties.
Practical tip: Don't leave your ANC to the last minute. Between drafting, consultation and execution, allow proper time well before the wedding date — a rushed ANC signed the night before the ceremony is a genuine, and entirely avoidable, source of stress.
When Circumstances Change After the "I Do"
Postnuptial Contracts & Changing Your Regime
Life doesn't always cooperate with paperwork deadlines. Couples who married without an ANC — or whose circumstances have genuinely changed since their wedding — sometimes need to change their matrimonial property regime after the fact. This is possible, but it is a considerably more involved process than signing an ANC before marriage.
A postnuptial change generally requires a court application. Under section 21 of the Matrimonial Property Act, spouses who wish to change their matrimonial property system after marriage must apply to the High Court for leave to do so — the court must be satisfied that there are sound reasons for the change, and that no creditor will be prejudiced by it.
Because this process involves both legal argument and often the interests of third-party creditors, it typically requires more time, cost and formality than an ANC signed before marriage — another reason the pre-marriage route, where it's still available, is almost always the simpler path.
The law makes changing your matrimonial regime after marriage possible, but deliberately not easy — which is exactly why getting proper advice before the wedding remains the better investment.
Making Your Documents Work Abroad
Apostilles & Document Authentication
South African documents don't automatically carry legal weight in other countries. If you're emigrating, studying abroad, or conducting business internationally, your documents typically need to be authenticated before a foreign authority will accept them.
Accuracy matters — and delays are common. Notarisation and apostille errors are consistently among the leading causes of delay for students and professionals applying abroad. Getting the correct process right the first time avoids the frustration of a rejected application months into a process.
Acting on Someone Else's Behalf
Powers of Attorney
A power of attorney is a document authorising one person (the agent) to act on behalf of another (the principal) in specified matters — signing documents, conducting transactions, or managing affairs the principal cannot attend to personally, whether due to distance, incapacity, or simple convenience.
General Power of Attorney
Grants broad authority to act across a wide range of the principal's affairs, typically used for a defined period or purpose.
Special Power of Attorney
Limited to a specific transaction — such as signing property transfer documents or representing the principal at a single meeting.
Powers of Attorney for Use Abroad
Often need to be notarised and, depending on the destination, apostilled or legalised before a foreign institution will accept them.
Having a document witnessed by a notary carries specific weight. Where an institution — particularly a foreign one, or a bank handling a significant transaction — requires a notarised power of attorney, they are relying on the notary's verification of identity and genuine consent, not merely a signature.
A power of attorney generally lapses on the principal's death or, in most cases, on their loss of mental capacity — anyone wanting arrangements to continue in the event of incapacity should discuss this specifically with their attorney, as different legal mechanisms apply.
Security Over Movable Property
Notarial Bonds
A notarial bond is a registered form of security over movable property — equipment, stock, vehicles, or other business assets — given by a borrower to a lender, functioning in a similar way to a mortgage bond over immovable property, but for movables.
| Type | How It Works |
|---|---|
| General Notarial Bond | Covers all of the borrower's movable assets generally, without listing specific items — offers the lender security, but ranks behind a special notarial bond in a competing claim |
| Special Notarial Bond | Registered over specifically identified and described movable assets, giving the lender a stronger, more precisely enforceable security interest in those particular items |
Practical tip: Businesses seeking finance secured against equipment or stock, rather than property, will often be asked by a lender to register a notarial bond. Because the document must be drawn and registered by a notary, and specific description of the secured assets materially affects its strength, this is not a document to attempt without proper legal drafting.
Like other notarial deeds, a notarial bond must be registered at the Deeds Office to have its full legal effect and to be enforceable against third parties, including other creditors of the same borrower.
The Wider Notarial Toolkit
Other Notarial Deeds
Beyond antenuptial contracts, apostilles, powers of attorney and notarial bonds, notaries handle a further range of specialised documents — collectively known as notarial deeds — each requiring the same care around identity, consent and correct legal form.
A long-term lease is a notarial matter too. Any lease of immovable property for longer than ten years must be notarised and registered to bind future owners of the property — a requirement that catches many landlords and tenants by surprise when negotiating an extended commercial lease.
Whatever the specific document, the underlying principle stays the same: a notary's role is to protect the integrity of the transaction — verifying who the parties really are, that they genuinely consent, and that the document itself complies with the law — before attaching their seal.