Introduction to Notarial Practice

Introduction to Notarial Practice

• The study of notarial practice includes defining who notaries are.
• Notaries' main duties and responsibilities are detailed.
• A history of the office of the notary is provided.

Who is a Notary?

• Deeds Registry Act (DRA) S. 2 defines a "notary public" as someone practicing as such where a document is executed.
• Legal Practitioners Act (LPA) S. 2 defines a "notary" as a "legal practitioner duly admitted as a notary public in Botswana".
• Under the LPA, a legal practitioner is an advocate, attorney, notary, or conveyancer.
• Notaries public are legal practitioners dealing with specific documents within a legal jurisdiction.
• The documents notaries handle must show they're admitted to practice.
• DRA S. 17 identifies land transfer documents, such as "deeds of cession" attested by a notary public, as documents notaries deal with in Botswana.

Admission as a Notary

• LPA Ss 8 and 9 cover admission to practice as a notary or conveyancer.
• Under S. 8, one must be admitted and enrolled as an attorney.
• Under S. 9, one must satisfy a court of fitness and propriety.
• There must be no removal order or pending proceedings.
• One must pass examinations on notarial practices, functions and duties.
• LPA S. 54 empowers the Chief Justice, with the Minister and Council's consultation, to make regulations.
• S.I. 72 of 1996 exempts those passing notary public/conveyancing exams as part of their University of Botswana LLB degree from other legal practitioner exams.
• In Re Tebo Tracy Monyeki - Moyo, MISCA F180 of 2005, Masuku J. stated only a conveyancer/notary could certify a petitioner's fitness for notary or conveyancer admission.
• The Chief Justice's exemption notice was unlawful because it amended statutory provisions.
• Other judges admit attorneys passing conveyancing and notarial practice exams in the University based on the exemption notice.
• Passing LAW 532 and 533 at the University of Botswana remains important for students.

Historical Snapshots

• Notarial practice is possibly the oldest specialization in legal practice.
• Civilizations influencing common law recognized professionals with duties similar to modern notaries.
• Historical examples include biblical communities for canon law contributions.
• Other examples are the Roman Empire, Roman Dutch law in the Netherlands and at the Cape of Good Hope, and early colonial law in the Bechuanaland protectorate.
• In biblical times, Hebrew Kings and Pharaohs employed scribes.
• Scribes were shorthand writers that recorded meetings and kept copies of important documents.
• Scribes can read and write, and they can be free men or slaves.
• The Bible is attributed to inspired men that likely dictated thoughts and inspiration to scribes, such as Baruch, Son of Neriah, writing for the Prophet.
• During the Roman Republic and Empire, functionaries like scribes were known as librarii, tabelliones, tabularii, actuarii, and notarii.
• Librarii were attached to Magistrates to record proceedings and produce public meeting accounts.
• Tabelliones were archive keepers responsible for drawing up legal documents and agreements, setting up stalls in marketplaces, and forming a special state order.
• Tabularii took charge of public documents and registers.
• Actuarii/notarii were initially shorthand writers taking notes for wealthy Romans in law courts.
• Emperor Justinian established archives for documents drawn by notarii.
• A distinction emerged between private and public document preparation.
• Private documents required witnesses for attestation.
• Public documents were drawn up before Judges/Bishops.
• Notarii stood in for Judges/Bishops and eventually took over the function.
• The word notary is derived from the notarii of the Roman Empire.
• It is uncertain when notaries began practicing in the Netherlands.
• The office was well-established by the 16th Century, which required regulation.
• A Placaat (Edict) by Charles V of 2 March 1524 restricted the establishment of such offices.
• Only approved persons of re-known could set up offices.
• The Edict provided for keeping copies and registers of acts passed by a notary.
• Section 45 and 46 of the LPA originated from this Edict.
• Notaries in the Netherlands were mainly preparing documents for clients.
• Notaries was also a reliable source of document copies.
• Attorneys, on the other hand, were mainly involved in litigation.
• The first notary was appointed at the Cape in 1672.
• In 1793, Dutch East India Company Commissioners issued regulations for notaries, but their authority was questionable.
• Licenses were issued to notaries from 1793-1858 without backing legislation.
• The practice form was carried over from the Netherlands but did not include admission restrictions.
• The Cape Colony Act, No. 12 of 1858 was the first legislation on the topic.
• The Supreme Court was empowered to make rules and regulations for practice as notaries and conveyancers.
• Initially, advocates studying in the Netherlands were admitted to practice as notaries.
• Later regulations provided for the summary admission of attorneys, and other persons apprenticed for 4 years.
• Act No. 11 of 1903 eventually stated that only attorneys were eligible for admission.
• Some notaries likely practiced in the Bechuanaland Protectorate before legislation and regulation.
• The Legal Practitioners Act of 1904 was the first legislation.
• The Act empowered the Resident Commissioner to admit those admitted in South Africa.
• South Africa prescribed practical exams for admission in "post-colonial" legislation (Attorneys Act, 53 of 1979).