Legal Articles

In the early 1950s, the Council of Europe addressed the need to standardise the legalisation process to certify public documents required by destination countries to confirm the legitimacy of public documents presented to them when a traveller or business wished to transact or relocate for a short or permanent stay.

South Africans who intend to reside abroad either for a short stay or permanent relocation require that a multitude of public documents be certified with an Apostille stamp issued by local government officials.

The Apostille stamp certifies the authenticity of these documents required by the traveller in applications for study; international business transactions and foreign investment procedures; international marriages and relocations; intercountry adoption procedures; foreign legal proceedings, and many other situations.

Apostille Stamp - Authenticity and Legitimacy of Documents

The local authority will certify the authenticity and legitimacy of the traveller’s documents by endorsing them with the Apostille stamp, including written verification of endorsers identity or official capacity to assure they are legitimate for presentation worldwide, based on the common law Acta probate sese ipsa.

Document Authentication Process

The process for “authentication” is defined in r 63(1) of the Uniform Rules of Court.

In instances where one or both states are not contracted by the terms of the Apostille Convention (properly known as the Hague Convention), the process for authentication or legalisation by certification of pertinent documents will follow a different process. If the country of issue or destination is contracted to Apostille Convention, an Apostille stamp will be required. 

The procedure whereby the signature and stamp on a public document is certified as authentic by a series of public officials in South Africa is to ensure the ultimate authentication is readily recognised by an official of the country of destination as legal.

The traveller would approach the destination country’s diplomatic and consular missions located in SA or accredited to the Republic of South Africa, or the country where this document originates to facilitate this process.

These missions do not hold samples of the signatures, seals and/or stamps of every authority or public official in SA.

To ensure the validity of the document, an intermediate authentication between the authority or public official that executed the public document in South Africa, and the mission is often necessary.

In most cases, authentication by the Department of International Relations and Cooperation (DIRCO) and its Chief Directorate: Consular Services, who will attach a ‘Certificate of Authentication’ to the public documents.

The mission will require different processes be followed to authenticate public documents in compliance with the law of the state of destination, when presenting them to the mission for authentication, who will provide the seal and/or stamp by the official in that state, or the document may need to be presented to the Ministry of Foreign Affairs of that state before it is finally authenticated.

Certification processes in different countries

Certification processes differ from country to country, but the ‘chain’ typically involves several arduous, time consuming and costly steps for members of the public to produce the relevant documents at the destination country’s embassy.

Once the document has fulfilled all the steps required by the destination country’s embassy, for approval, a Certificate of Authentication is attached to the public document to verify its origin and authenticity. 

If for example a traveller wishes to relocate to the United Arab Emirates (UAE) and this person is divorced, he will need to furnish the UAE embassy with his divorce decree as proof of his marital status. 

First establish whether the divorce order needs to be Apostilled, as the UAE is not contracted to the Apostille Convention, this person will need to have his divorce order would need to be legalised by certification of the South African authorities.

The traveller would contact the division of the High Court where the divorce was granted directly and petition the current Registrar or Assistant Registrar of that commission to sign and stamp the divorce order.

The signed and stamped divorce order must be submitted to the Chief Directorate: Consular Services at DIRCO for the Registrar or Assistant Registrar’s signature and stamp to be authenticated.

A Certificate of Authentication will be placed on top of the divorce order where after it will be bound by a green ribbon, sealed and signed.

The certified divorce decree is then submitted to the Embassy of the UAE in Pretoria for the signature and stamp of the DIRCO official for authentication.

Some countries require that the signature of the foreign diplomat in Pretoria needs to be authenticated by the Ministry of Foreign Affairs of that country as an additional step in this process.

Complete Authentication Process

Below is the Authentication Process in its entirety:

• The public document is executed in the country of origin
• First authentication of this document is provided by the relevant ministry e.g. the civil registry of the origination country  
• The second authentication is provided by the originating country’s Ministry of Justice
• Third authentication is provided by the originating country’s Foreign Ministry of State
• The originating country’s Consulate of State authenticates this document as the fourth step in the process
• The fifth authentication is confirmed as a requirement of some destination countries from their relevant Foreign Ministry of State 
• Once all the steps have been followed for approval the document is ready to be presented in the destination country.

Van Deventer & Van Deventer Incorporated - Attorneys & Notaries Cape Town & Johannesburg

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