Have you ever wondered what the difference is between having a document ‘certified a true copy of the original’ versus what is an affidavit, and who can certify the document or ‘commission’ an affidavit? And what about notarisation – what is that? In this article, we will explain the differences, what is required and by whom, and some common mistakes and challenges.
What is the difference?
Certified copy
In so many contexts, we are required to provide a certified copy of various documents like our identity documents, passports, proof of residence, etc. This may be required when applying for an account at a retail store, for your bank, proving your marriage (some wish they didn’t!), applying for visas, and so on. The issue is that (generally speaking) you only have one original document, like your identity document or passport, and so you don’t want to part with that document. You therefore need to get a ‘certified copy’ of the original document, which is a photocopy of the original document, and you provide the certified copy to the party requiring it.
Affidavit
For many legal reasons, there are times when you need to provide an affidavit, which is a confirmation in a documented way that certain statements you make are true and correct, and that you make an oath swearing this to be binding on your conscience. If you lie or misrepresent the statements you make then this can result in civil or criminal penalties for breaching your oath. Affidavits may be required when making various kinds of applications, for certain civil and criminal processes, in respect of wills and administration of deceased estates, and so on.
Notarisation
In certain very specific legal contexts, you may be required to have a document notarised. The most typical example is when you get married out of community of property with an ante-nuptial contract (the ANC – not the party!), deed of servitude, deed of cession of usufruct (a usufruct is a right given by the owner of property to be used by another person), and also in certain instances as may be required by foreign governments or foreign laws. The ANC needs to be notarised by a notary public who adds a special kind of stamp. It is similar to a certified copy of a document in some ways except it has a higher level of formality, scrutiny, and can only be notarised by a notary public.
So who does what? And what is required?
Certifying a document as being a true copy of the original, and the commissioning of an affidavit can be done by any Commissioner of Oaths (a COO). A COO can be any person who ex officio (meaning by their position or qualification) is a commissioner of oaths such as attorneys, advocates, chartered accountants, and other persons authorised by the Minister of Justice under the Justice of the Peace and Commissioner of Oaths Act 16 of 1963 and related regulations.
For certification of documents:
The COO must see the original document (eg your passport) and the photocopy, and be satisfied that the photocopy is a true copy of the original, add their stamp, a confirmation that the document is a true copy of the original, and date the document.
For affidavits:
The person who is going to sign the affidavit, referred to as the ‘deponent’ must appear before the COO, confirm that the statements in the affidavit are true and correct, that they are willing to take an oath or swear/affirm the truthfulness to be binding on their conscience, sign physically (or if unable to sign, affix their mark) before the COO. Thereafter, the COO will add their stamp confirming their name, authority and address, and add the date of the affidavit.
Notarisation:
This is done by a notary public, which is an attorney with an added qualification to be a notary. A notary is authorised to sign certain documents by adding a special stamp, and is required to adhere to a higher standard when reviewing such documents. The notary will therefore scrutinise the documents, witness signatures, attest contracts and statements. The notary is required to keep a record of all documents they notarise, and in some instances, file them with the authorities (eg ANC contracts are registered with the Deeds Office). Such documents are known as notarial deeds.
In certain circumstances, if you are dealing with foreign government or foreign laws, there is a requirement that only a notary public must confirm documents or signatures as being authentic, and when the notary does so they will affix a special kind of stamp. In this instance, the stamp may be an apostille certificate (where parties are a party to the Hague Convention, also known as the Apostille Convention of 1961, which South Africa is a party to) or a certificate of authentication (where parties are not party to the Hague Convention). In some cases, as required by the foreign laws, the apostilled or authenticated document needs to be filed with the local courts or embassy as well.
So as you can see the process is more elaborate and can be time-consuming.
A notary public can do all things that a commissioner of oaths can do but not the other way around.
Things to consider and challenges
Certifications require the original documents. If you don’t have the original then the document cannot be certified.
Many of our documents are not ‘original’ but may be in electronic form. For example, proof of residence may be sent to you in PDF format via email and this poses a challenge from a certification perspective.
An affidavit requires the person (ie the deponent) to appear before a COO in person and sign in front of the COO. This is/was a challenge during the Covid lockdown period for example.
When signing an affidavit bring proof of your identification and do not sign the affidavit beforehand.
Notarisation is a specialised process and can be time-consuming especially if the apostilled document needs to also be filed with the court.
A commissioner of oaths or a notary public cannot sign any document in which they have an interest as this would be regarded as a conflict and unethical. For example, a COO can’t certify their own identity document.
Have you ever needed a certified copy, affidavit, or notarisation? Share your experiences and tips in the comments to help others navigate these legal processes!
To view a short-form infographic on Certified Copy vs Affidavit vs Notarisation that acts as a quick reference guide, click on the image below.
The information provided is for information purposes and does not constitute legal advice. Contact a lawyer should you require assistance. Legal Dynamix is not a law firm and does not provide legal advice on the subject matter contained herein.
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