Accession by South-Africa to the Hague Convention
The government notice in terms of which South Africa acceded to the convention is Notice 773 of 1995. What follows is the relevant text of the notice and convention.
“It is hereby notified for general information that the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, the text of which appears in the Schedule hereto, entered into force between the Republic of South Africa and the following States on 30 April 1995:
Antigua and Barbuda, Argentina, Armenia, Austria, Bahamas, Belgium, Belize, Byelorus, Bosnia and Herzegovina, Botswana, Brunei Darussalam, Croatia, Cyprus, Fiji, Finland, France, Germany, Greece, Hungary, Israel, Italy, Japan, the Kingdom of the Netherlands, Lesotho, Liechtenstein, Luxembourg, the former Yugoslav Republic of Macedonia, Malawi, Malta, Marshall Islands, Mauritius, Norway, Panama, Portugal, Russia, Seychelles, Slovenia, Spain, Surinam, Swaziland, Tonga, Turkey, the United Kingdom of Great Britain and Northern Ireland and the United States of America.
In terms of Article 6 of the Convention, the following authorities competent to issue the certificates referred to in Article 3 of the Convention, were designated:
1. Any magistrate or additional magistrate.
2. Any registrar or assistant registrar of the Supreme Court of South Africa.
3. Any person designated by the Director-General: Justice.
4. Any person designated by the Director-General: Foreign Affairs.
Convention Abolishing the Requirement of Legalisation for Foreign Public Documents
The states signatory to the present convention, desiring to abolish the requirement of diplomatic or consular legalisation for foreign public documents, has resolved to conclude a convention to this effect and have agreed upon the following provisions:
The present convention shall apply to public documents which have been executed in the territory of one contracting state and which have to be produced in the territory of another contracting state.
For the purposes of the present convention, the following are deemed to be public documents:
(a) documents emanating from an authority or an official connected with the courts or tribunals of the state, including those emanating from a public prosecutor, a clerk of the court or a process server (“huissier de justice”);
(b) administrative documents;
(c) notarial acts;
(d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.
However, the present convention shall not apply:
(a) to documents executed by diplomatic or consular agents;
(b) to administrative documents dealing directly with commercial or customs operations.
Each contracting state shall exempt from legalisation documents to which the present convention applies and which have to be produced in its territory. For the purposes of the present convention, legalisation means only the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it, bears.
The only formality that may be required in order to certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears, is the addition of the certificate described in Article 4, issued by the competent authority of the state from which the document emanates.
However, the formality mentioned in the preceding paragraph cannot be required when either the laws, regulations, or practice in force in the state where the document is produced or an agreement between two or more contracting States have abolished or simplified it, or exempt the document itself from legalisation.
The certificate referred to in the first paragraph of Article 3 shall be placed on the document itself or on an “allonge”; it shall be in the form of the model annexed to the present Convention. It may, however, be drawn up in the official language of the authority which issues it. The standard terms appearing therein may be in a second language also. The title “Apostille (Convention de La Haye du 5 October 1961)” shall be in the French language.
The certificate shall be issued at the request of the person who has signed the document or of any bearer. When properly filled in, it will certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which the document bears. The signature, seal and stamp on the certificate are exempt from all certification.
Each contracting state shall designate by reference to their official function, the authorities who are competent to issue the certificate referred to in the first paragraph of Article 3. It shall give notice of such designation to the Ministry of Foreign Affairs of the Netherlands at the time it deposits its instrument of ratification or of accession or its declaration of extension. It shall also give notice of any change in the designated authorities.
Each of the authorities designated in accordance with Article 6 shall keep a register or card index in which it shall record the certificates issued, specifying:
(a) the number and date of the certificate,
(b) the name of the person signing the public document and the capacity in which he has acted, or in the case of unsigned documents, the name of the authority which has affixed the seal or stamp.
At the request of any interested person, the authority which has issued the certificate shall verify whether the particulars in the certificate correspond with those in the register or card index.
When a treaty, convention or agreement between two or more contracting states contains provisions which subject the certification of a signature, seal or stamp to certain formalities, the present convention will only override such provisions if those formalities are more rigorous than the formality referred to in Articles 3 and 4.
Each contracting state shall take the necessary steps to prevent the performance of legalisations by its diplomatic or consular agents in cases where the present convention provides for exemption.”1
Notice 773 of 1995. The remaining articles deal with formal matters such as accession to and denunciation of the Convention.