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Legal Matters with Arthur Marara
There is a sizable number of Zimbabweans who are domiciled in the diaspora. The numbers now exceed millions in Africa, and abroad. These people do have legal issues back at home.
You may need to file process in Zimbabwe yet you are based outside the jurisdiction of the Court.
Daily, matrimonial summons are being filed out of the High Court of Zimbabwe, and affidavits have to be filed in respect of matters that are proceeding by consent. It also happens that some Powers of Attorney are executed outside the jurisdiction.
The High Court Rules of 2021, define a “document” as any deed, written contract, power of attorney, affidavit or other writing, but does not include an affidavit sworn before a commissioner.
The Commissioner referred to in terms of the High Court Rules is defined as, a commissioner of the High Court appointed by the High Court to take affidavits or examine witnesses in any place outside Zimbabwe. This is different from your normal commissioner of oaths.
The reason why an affidavit sworn before a commissioner is excluded is because there is no need for authentication is the affidavit has been sworn before the Commissioner.
The definition of documents brings a fundamental issue of authentication as this also determines whether or not a document can be accepted as evidence if it has not been properly authenticated.
If a document has been executed outside Zimbabwe, it has to be sufficiently authenticated for it to be deemed to be admissible in Zimbabwe.
We will look at the meaning of “authenticate” in the next few paragraphs. I took a point in limine successfully in one of the cases that made rounds on social media attacking the authenticity of an affidavit that had been allegedly or purportedly “authenticated” in the United Kingdom.
The point was resolved by the Court, and it also made reference to leading authorities on this point. This also means the ruling of the Court is now in the public domain and privilege does not apply.
The Supreme Court in the past has also raised serious issues of concern regarding the authentication of documents prepared outside Zimbabwe.
This becomes a serious area that all legal practitioners and would be litigants have to familiarise themselves with.
One of the leading cases on the question of authentication is the Supreme Court decision in Stand Five Four Nought (Private) Limited v Salzman ET CIE SA SC 30/2016. In that case, a power of attorney was challenged before the High Court unsuccessfully.
The decision of the High Court was taken on appeal to the Supreme Court. The Appellant’s contention was that the power of Attorney was not lawfully granted because it was signed by the respondent on 24 June 2014 while the Notary Public signed it on 26 June 2014.
Counsel for the Appellant contended that the Power of Attorney was not properly authenticated as it should have been signed by the representatives of Salzman ET CIE SA before the Notary Public.
The Respondent conceded to the attack on the validity of the Power of Attorney on appeal.
The Supreme Court however, took the opportunity to set the precedent in so far as the law relating to the authentication of the Power of Attorney is concerned as it was concerned about the precedent that would be set by the judgment which was being impeached.
In determining the issue of whether or not the power of attorney was properly authenticated in view of the two dates, the court a quo said: –
“I do not intend to be detained by an argument which appears to have been conjured by a desperate litigant clutching on straws. Even the untrained eye can see that the special power of attorney was typed and printed with a date of 24 June 2014 for the signature of the creditor. The Notary Public who authenticated the signatures appended his own date stamp with 26 June 2014 and signed.
‘‘There is therefore no basis for suggesting that the document was signed on different days. I am prepared to surmise that the correct date of signing by all the parties was 26 June 2014 and reject the suggestion that the document was signed on different dates.
‘‘Errors of that nature do occur in the heat of the moment and are so insignificant that they should not be allowed, on their own to decide the outcome of important litigation.”
The Power of Attorney was allegedly executed before a Notary Public in the Republic of Panama. No evidence was led from the signatories on the assumed error.
The Supreme Court further observed that even if it were to be accepted without evidence that such errors occur in our jurisdiction, which practice the Court held should not be accepted, can the courts take judicial notice of them and determine issues in the absence of evidence proving such errors? The Appellate Court further stated that if an error occurs evidence should be led before the document can be relied on.
A court cannot take judicial notice of the occurrence of such errors. The proper authentication of a document gives it validity. Once the authentication is rendered questionable the court cannot rely on such a document.
C H Van Zyl in his work “The Notarial Practice of South Africa” at p 81 says:-
“The object of authentication is to ensure the genuineness of the signatures to deeds. Prima facie this authentication is a guarantee that all the required solemnities or requisites of the law in due execution of a deed have been complied with and that the parties therein named have duly signed it in the presence of the witnesses and that the notary in whose presence it was signed was qualified to act as such.”
In this case the Court was dealing with a document authenticated in the Republic of Panama. Even if the courts could take judicial notice of errors which occur in the confirmation of documents locally, they can certainly not assume that the same errors occur in the Republic of Panama and take judicial notice of them.
The court a quo misdirected itself when it held that the two dates are a result of an error and do not invalidate the power of attorney.
Assuming as the court a quo did that the 24th was merely typed in as part of the document and is not the date of signing by the respondent’s representatives it should have been cancelled and counter signed by the representatives and the notary public. CH Van Zyl in his Book “The Notarial Practise of South Africa” commenting on how alterations should be done says:-
“If before a deed is signed, an alteration is necessary, words deleted should be done in such a way that they can still at all times be read and understood, and the alterations, additions, or variance should appear in the margin of the deed or at the end, and be duly attested by the appearer, the witnesses, and the notary”.
Rule 85 (2) of the High Court Rules provides that, any document executed in any place outside Zimbabwe shall be deemed to be sufficiently authenticated for the purpose of production or use in any court or tribunal in Zimbabwe or for the purpose of production or lodging in any public office in Zimbabwe if it is duly authenticated at such foreign place by the signature and seal of office—
(a) of a notary public, mayor or person holding judicial office; or
(b) in the case of countries or territories in which Zimbabwe, has its own diplomatic or consular representative, of the head of a Zimbabwean diplomatic mission, the deputy or acting head of such mission, a counsellor, first, second or third secretary, a consul-general or vice-consul; or
(c) of any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
(d) of any person in such foreign place who shall be shown by a certificate of any person referred to in paragraphs (a), (b) or (c) to be duly authorised to authenticate such document under the law of that foreign country; or
(e) of a commissioned officer of the Zimbabwe Defence Forces as defined in section 2 of the Defence Act [Chapter 11:02], in the case of a document executed by any person on active service.
In terms of Rule 85 (1) of the High Court Rules SI 202 of 2021 the word authenticate in relation to a document is defined as meaning “the verification of any signature thereon;” A signature cannot be said to have been verified if it is not clear whether or not it was signed in the presence of the Notary Public.
In the absence of authentication, a document requiring authentication in terms of the law does not have legal effect.
You may have seen certain documents from Universities or some companies outside Zimbabwe that require a Notary Public to sign, this is to deal with the issue of authentication.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].
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