Notarization plays a central role in ensuring the authenticity and enforceability of legal documents in Lesotho, particularly those requiring registration in the Deeds Registry. The framework set out in the Deeds Registry Act of 1967 (“DRA”) and related regulations provides strict requirements that parties, legal practitioners, and notaries must observe.
Purpose of Notarization
The primary function of notarization is to verify the identity of the person signing a document. A notary public must confirm that the signatory is indeed who they claim to be, and the signer must appear physically before the notary at the time of execution. Where witnesses are required, they too must be present alongside the notary and the signatory.
Documents Requiring Notarization
Several categories of notarial deeds must be notarized before they can be validly registered in Lesotho. These include:
- Trust deeds and donations,
- Antenuptial contracts (ANCs),
- Notarial bonds, and
- Suretyships.
Failure to comply with the statutory notarization process will result in the deed being refused registration.
Legislative Framework
The DRA defines a notary public as a person admitted and lawfully practising in Lesotho, but also extends recognition to a notary public practising outside Lesotho in the place of execution. Importantly, section 13 of the DRA prohibits the registration of a notarial document unless it has been prepared by a legal practitioner, notary public, or conveyancer admitted to practise within Lesotho.
Notarial Bonds
Under section 40(2) of the DRA, no notarial bond may be registered unless it has been attested by a notary public. Section 40(3) addresses bonds executed outside Lesotho, which may be registered if attested by a notary public or otherwise executed in accordance with the law of the place of execution.
Antenuptial Contracts (ANCs)
Similarly, section 45(2) requires that ANCs executed outside Lesotho be attested by a notary public or entered into in accordance with the applicable law of the place of execution.
Notaries Practising in Multiple Jurisdictions
The Act does not prohibit a notarial deed being signed only before a Lesotho notary public within Lesotho. In fact, the provisions relating to ANCs and notarial bonds suggest that a Lesotho notary may attest deeds executed abroad. For practitioners admitted in both Lesotho and South Africa, this provides flexibility: a deed signed in South Africa may be attested in either capacity, provided compliance with disclosure requirements (including place and date of execution) is maintained.
Authentication of Foreign Documents
The Authentication Proclamation of 1964 regulates the use of foreign documents in Lesotho. Section 10 provides exemptions from authentication in certain cases, including:
- A power of attorney to defend proceedings in Lesotho courts, signed in South Africa and witnessed by two competent witnesses; and
- Affidavits signed before a South African Commissioner of Oaths and bearing their official seal.
Although primarily directed at court proceedings, these provisions appear to extend to documents intended for registration in the Deeds Registry.
Conclusion
The notarization and attestation framework in Lesotho underscores the importance of accuracy, presence, and compliance with statutory requirements. Companies, individuals, and notaries involved in cross-border transactions must pay close attention to execution and attestation formalities to ensure that documents are validly registered in the Deeds Registry. Non-compliance can result in significant delays, rejections, or legal invalidity of critical instruments such as notarial bonds, trusts, or antenuptial contracts.