Tawanda v Ndebele (HB 27 of 2006) [2006] ZWBHC 27 (5 April 2006)

Judgment No. HB 27/06 Case No. 1826/05 PROSPER TAWANDA Versus THOLAKELE NDEBELE IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 8 MARCH 2006 AND 6 APRIL 2006 Mr J Sibanda for applicant Mr C P Moyo for respondent Judgment (authentication of documents) CHEDA J: This is an application for eviction of respondent by applicant, which brings up for determination the question of the validity of the authentication of documents. Applicant, Prosper Tawanda, (herein referred to as “Prosper”) is based in the United Kingdom, gave a general Power of Attorney to his brother Albert Tawanda (herein referred to as “Albert”) which amongst other powers, to purchase a house on his behalf and also sue on his behalf should the need arise. The power of attorney filed of record was stamped:- “Anas A Khan B. Com. LLB MA (LAW) Solicitor. 48 a Tooting High Street Tooting, SW17 ORG” It is common cause that this Power of Attorney was attested to in the United Kingdom. It is this power of attorney which Albert used to sue for the eviction of respondent in this matter. Before the matter was argued, Mr C P Moyo for respondent raised a point in limine being that the Power of Attorney which applicant was relying on HB 27/06 was not properly before the court, as it was authenticated by a solicitor and not by a notary public, mayor or a person holding judicial office as required by the High Court (Authentication of Documents) Rules executed outside Zimbabwe. The said rule reads: - (3) “Any document executed outside Zimbabwe shall be deemed to be sufficiently authenticated for the purpose of production or use in any court or tribunal in Zimbabwe or for the purpose of production or lodging in any public office in Zimbabwe if it is authenticated: – a) b) “by a notary public, mayor or person holding judicial office; or …” Section (2) of the said Rules define authentication as “authentication”, in relation to a document, means the verification of any signature thereon; Mr Sibanda for Applicant, while accepting that the Power of Attorney was not authenticated by a notary public, he urged the court to accept it as it is, as the solicitor is an officer of the court. It is his further argument that since a solicitor is an officer of the court, the court, therefore, should have trust in him and accord him the same status as that of a notary public. He further argued that in Zimbabwe an attorney/legal practitioner is also a notary public. This argument by Mr Sibanda is a very broad interpretation of the word notary public which is a misleading interpretation of this legal term. The authority of a notary public to practice must be viewed and understood in relation to the jurisdiction where such officer operates as different jurisdictions have different requirements. The fact that the status of an attorney (solicitor) and a notary public is equal admits of no doubt. But, that is only how far this can go. In this matter we are not concerned with the status but with functions. In certain jurisdictions the functions of an attorney and of a notary public are separate and as such are separately registered. While I agree HB 27/06 with Mr Sibanda that in Zimbabwe a legal practitioner once registered with the Law Society, he automatically practices as a legal practitioner, notary public and conveyancer, the same does not obtain in other jurisdictions. In other jurisdictions, for instance in the United Kingdom, the procedure and practice is entirely different in that the three practitioners, that is the Solicitor (as a legal practitioner is referred to) a notary public and conveyancer are registered separately. Although a solicitor can also practice as a notary public he can only do so under certain conditions, therefore such privilege is not automatic. The definition of notary public needs to be defined. In Halsbury’s Laws of England 4th edition Volume 34 at Page 85 (201) a notary public is defined as follows:- Meaning of “notary”. “A notary public is a duly appointed officer whose public office it is, among other matters, to draw, attest or certify, usually under his official seal, deeds and other documents, including conveyances of real and personal property, and powers of attorney relating to real and personal property situate in England and Wales, other countries in the Commonwealth or in foreign countries; to note or certify transactions relating to negotiable instruments; to prepare wills or other testamentary documents; to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships.” In the United Kingdom where the Power of Attorney was attested to by the Solicitor, it is a legal requirement that in order for such a solicitor to practice as a notary public he should be registered as a duly certificated notary public in the United Kingdom. Such requirement is clearly laid down in Halisbury’s Laws Of England 4th edition. Volume 34 at P86 which states:- HB 27/06 “In any enactment “duly certificated notary public “means a notary public who either (1) has in force a practicing certificate as a solicitor, duly entered in the Court of Faculties of the Archbishop of Canterbury in accordance with the rules made by the Master of Faculties; or (2) has in force a practicing certificate as a notary public issued by the Court of Faculties in accordance with the rules so made. Thus a solicitor who is also a notary is only liable to take out one certificate, but it must be registered at the office of the Master of the Faculties.” (the underlining is mine) The particulars of a person who authenticated Prosper’s Power of Attorney indicate that he is a mere solicitor. In the absence of evidence that he is registered as a notary public, I find it difficult to accept that he is indeed a notary public authorised to practice as such in terms of the laws of the United Kingdom. The office of a notary public is very important and his signature together with his seal of office is so important that it commands international recognition to an extent that the mere exhibition of a notarized document is absolutely acceptable for judicial purposes. For this reason, therefore, a notary public’s office should be protected and recognised for what is worth. Prosper’s signature was not authenticated by a notary public. Therefore, its authority is questionable. It is my view, therefore, that there should be no compromise by seeking to accept a questionably authenticated document either for academic or expedience purposes. The rules of this court have listed certain officials who are authorised to authenticate documents and those rules should be applied in toto. In light of the above, there is no Power of Attorney before this Court authorising Albert to act for and on behalf of applicant, accordingly the application is dismissed with costs. Job Sibanda and Partners, applicant’s legal practitioners Majoko and Majoko, respondent’s legal practitioners HB 27/06