PART 1 NOTARY NOTES 2022

THE NOTARIAL OFFICE

A notary is a public officer admitted and authorised by the High Court to draft and
attest contracts and other documents of a public [Link] a practicing practitioner
may practice as such. See Elliot, South Africa Notary Practice.

Section 2 of the Deeds registries Act Chapter 20:05 provides

, In this Act— “notary public” means a person registered as such in terms of the
Legal Practitioners Act [Chapter27:07]and, in relation to any document executed
outside Zimbabwe, means a person lawfully practicing as suchin the place where the
document was executed.

Section 4 of the Legal practitionersActprovides for application for registration as a

notary public, (1) Any person who wishes to be registered, whether as a legal
practitioner, or a notary public...Shall make an application to the High Court in the
form and manner prescribed in regulations.(2) An application for registration as (b) a
notary public may be combined with an application for registration as a conveyancer,
andviceversa.

The admission and regulation of Notaries in Zimbabwe is one of the functions of the
High court, Section 5 (2)of the Legal practitioners Act states- Upon application
being made to it in terms of section 4 for registration as a notary public ..., the High
Court may grant the application and direct the Registrar to register the applicant as a
notary public.

A Notary has been described as the eye of the judge and in everything he does, he
must be thoroughly impartial. Every notarial document is a public instrument in which
he must not at all be interested in. He must not benefit himself in a private way by
any act which he performs as a public functionary. As per Buchanan ACJ in
Johnson v Estale Le Grange [1908]25 SC 823.
Given the high respect and esteem granted to a Notary, there are several common
law and statutory duties that [Link] is placed on such qualities as
responsibility, credibility, impartiality,and professional integrity.

1,2 DUTIES AND FUNCTIONS OF A NOTARY PUBLIC

Under Privileges,restrictions and offence in connection with practice S8 of the Legal
Practitioners Act, provides for Privileges of registered legal practitioners practicing
as notaries,(1) Subject to this Act, a registered legal practitioner who is in possession
of a valid practising certificate issued to him may practise the profession of law.(2)
Without derogation from the generality of subsection (1), but subject to this Act—b) a
registered notary public who is in possession of a valid practising certificate issued to
him may execute, attest and authenticate anything which is required to be executed,
attested or authenticated by a notary public;

Further sec 9 (3) of the Legal practitioners Act makes it an offence for persons other
than Notaries to perform particular acts;It states;

“Subject to any other law, no person other than a registered notary public who is in
possession of a valid practising certificate issued to him shall execute, attest or
authenticate anything which is required to be executed, attested or authenticated by
a notary public”.

The rationale for giving Notariesa monopoly over certain acts is generally to protect
the public. The work that is reserved is regarded as so important that only trained
Notaries can perform it.

DOCUMENNTS WHICH SHOULD BE DRAFTED BY NOTARIES

1) Notarial deed of sale

2) Notarial deed of trust

3) Notarial deed of donation

4) Notarial deed of change of name

6) Notarial deed of servitude

7) Notarial deed in terms of Section 27 of the Deeds registries Act

8) Notarial bonds (over movable property)

9) Ante nuptial contracts

10) Mining contracts

PROFESSIONAL CONDUCT
Because all Notaries are legal practitioners, they are part of and regulated by the
Zimbabwe Law society, who conduct annual accounting audits of Notarial offices,
establish and regulate professional and ethical standards, and can censure or
temporarily suspend Notaries. The Law Society is primarily responsible for
maintaining the standards of the legal profession, and for instituting disciplinary
proceedings against errant members of the profession. Sec 53(c) of the Legal
practitioners Actempowers the law society;

“to define and enforce correct and uniform practice and discipline among legal
practitioners”.

Currently there is no specific and exclusive code to guide Notaries Public in

Zimbabwe when statutes, regulations and official directives fall short. A paper
addressing the importance of the need to have a separate code of conduct for the
office of the notary in the United States of America, read in part;

“While many occupations pose professional and ethical norms for their practitioners,
the need for guidelines is particularly acute with persons holding the office of Notary
because of their unusual status as both public and private functionaries. In few
offices is the practitioner more subject to conflicting pressures.

Notaries have primary ethical duties towards:

 The court
The Notary shall, as a government officer and public servant, serve all of the
public in an honest, fair and unbiased [Link] has a duty not to misdirect the
court; the Notary shall not execute a false or incomplete certificate, nor be
involved with any document or transaction that the Notary believes is false,
deceptive or fraudulent
 Their clients and other legal practitioners
Notaries are independent and disinterested; a notary does not represent or act in the
interest of any one party. Instead, under the Dutch legal system, notaries are
required to act impartially on behalf of all parties to a contract or transaction. For
example, when real property is conveyed, notaries act for both the seller and buyer.
They are subject to legal professional privilege and are therefore duty-bound not to
betray client confidentiality,

Duty to act with reasonable diligence

Notaries must apply due diligence to the conduct of their clients’ affairs. They must
acknowledge instructions received, reply promptly to letters and keep their clients
and correspondents informed as to the progress of events.

Inordinate delay in performing work, with resultant actual or potential prejudice to the
client, amounts to professional misconduct.
Conflict of Interest
A notary public is not prohibited from notarizing for relatives or others, unless doing
so would provide a direct financial or beneficial interest to the notary public.
However, care should be exercised if notarizing for a spouse or a domestic partner.

The following situations provide guidelines for when a notary public would have a
direct financial or beneficial interest to a transaction are;

• If a notary public is named, individually, as a principal to a financial transaction.

• If a notary public is named, individually, as any of the following to a real property

transaction: beneficiary, grantor, grantee, mortgagor, mortgagee, trustor, trustee,
vendor, vendee, lessor, or lessee.

A notary public would not have a direct financial or beneficial interest in a transaction
if a notary public is acting in the capacity of an agent, employee, insurer, attorney,
escrow holder, or lender for a person having a direct financial or beneficial interest in
the transaction.

Because a notary is a legal practitioner the same duties of care and competence
expected from an ordinary attorney are of equal application to the former.

In Honey &Blanckenberg v Law 1965 RLR 685 (G) at 691 (1966 (2) SA 43 (R) at
46), Goldin J said:

“An attorney’s liability arises out of contract and his exact duty towards his client
depends on what he is employed to do … In the performance of his duty or mandate,
an attorney holds himself out to his clients as possessing adequate skill, knowledge
and learning for the purpose of conducting all business that he undertakes. If,
therefore, he causes loss or damage to his client owing to a want of such knowledge
as he ought to possess, or the want of such care as he ought to exercise, he is guilty
of negligence giving rise to an action for damages by his client … Where an action is
brought by the client against his attorney for negligence, the [client] must prove that

As highlighted above the general common law ethical standards expected from an
ordinary lawyer apply mutatis mutandis to the specialised notary [Link]
practitioners must be truthful, honest, candid and fair in all their dealings. This is an
all-embracing and inflexible rule.

When considering applications for the registration of notaries, the High Court must
consider whether the applicant is a fit and proper person to be registered. This
means that an applicant must be a person of honesty and reliability. In Hayes v the
Bar Council 1981 ZLR 183 (A) at 199–200 Fieldsend CJ said:

“So far as possible the court must be satisfied that an applicant will be able with
honesty and balance to perform the duties of an advocate to the advantage of
those he is called upon to represent. … In addition, the profession of advocate
and attorney requires the utmost good faith from practitioners and from all
 aspirant practitioners … An advocate, whose main duty it will be to represent his
clients before the courts, must be a person in whose reliability and integrity the
court must be able to place complete trust, it always being remembered that an
advocate owes a duty at least as much to the court as to his client. And the
court must be satisfied that he will not be his behaviour do anything to bring the
courts or the profession into disrepute.”

Confidentiality
This goes further than legal practitioner-client privilege. Anything that would be
protected by legal practitioner and client privilege under the law of evidence must be
keptconfidential, but even communications which are not privileged must be kept
confidential unless the client consents to their being disclosed. Confidentiality
extends to any information gained while acting for one’s client.

Even information that has become an open secret (e.g. a sale of immovable property
whose details are documented in the Deeds Registry) must not be divulged without
the client’s consent. Gossiping about matters in hand, even if the client is not
named, is unethical.

Even if a legal practitioner has withdrawn from a matter, information divulged to him
by his former client is confidential, even so far as the client’s new legal practitioner is
concerned.

The client’s death does not terminate the need for confidentiality, except in regard to
matters concerning the administration of the client’s estate.

A change of legal practitioners does not terminate the need for confidentiality either.
Without the former client’s consent, the old legal practitioner may not disclose
confidential information without the client’s consent, even for the purpose of putting
the new legal practitioner in the picture regarding the client’s affairs.

Code of ethics and Section 23 of the Legal practitioners Act Cap 27:07 sets out
various forms of unprofessional, dishonourable or unworthy conduct on the part of
legal practitioners. A practitioner must not:

1. Tout or advertise.
2. Contravene the Act or any regulations, rules or by-laws made under it.
3. Withhold any payment of trust money without lawful cause.
4. Enter into a champertous transaction, except as permitted by the Act.
5. Permit anyone who is not a legal practitioner to receive any fee or income in
respect of work restricted to a legal practitioner.
6. Open or maintain an office which is not under continuous personal
supervision of a legal practitioner.
 7. Keep books of account for his practice jointly with an unregistered
[Link] anyone who is not a legal practitioner by way of a share
in the profits.
8. Tender in response to an advertisement to perform legal work.1
9. Help an unregistered person recover charges for services by including those
charges in his own bill of costs, without disclosing that fact.
10. Allow his name to appear in an advertisement or letter-head in conjunction
with an unregistered person’s name, giving the impression that he is
associated with that other person in the practice of the profession of law.
11. Place himself under the control of an unregistered person so as to
compromise his professional independence.
12. Levy fees that are lower than the prescribed minimum.
13. Note that the list is not exhaustive: sec 23(2) allows the Council of the
Society or the Disciplinary Tribunal or a court to determine that other types of
conduct constitute unprofessional, dishonourable or unworthy conduct

STATUTORY MISCONDUCT(code of ethics)

Touting and advertising
Legal practitioners may not tout (i.e. solicit for business or pester customers)Law
Society Cape v Berrangé 2005 (5) SA 160 (C), a practitioner was held guilty of
touting where he entered into “marketing agreements” with estate agents whereby
he rewarded them for referring conveyancing work to his firm .The argument in
Berrange case is equally applicable for notaries. Nor may they advertise the Law
Society in its guidelines, published in 2000. Provides for exceptions. These may be
summarised:

1. Legal practitioners must conduct themselves in a manner consistent with the

good reputation of the profession. Any publicity must be in good taste with
regard to both content and usage and must not be misleading. Advertising
must not compromise or impair:
 the practitioner’s independence or integrity or duty towards his client;
 the client’s freedom to instruct a legal practitioner of his choice;
 the legal practitioner’s duty to act in the best interests of the client;
 the good repute of the practitioner or the profession;
 the proper standard of the practitioner’s work.
2. A firm’s name and address may appear in bold type in a telephone directory
and also in the yellow pages under the title “legal practitioners”.
3. Business cards can be given only to people who reasonably need to have a
record of the information contained in them.
4. No advertisement may name the firm’s clients, and a practitioner may refer to
a client’s name in the public media only with the client’s written consent.

1
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 5. No advertisement may compare the services of the firm with those given by
any other legal practitioners, nor may it refer to a legal practitioner’s success
rate.
6. No advertisement may compare the legal practitioner’s charges with those of
another.
7. No advertisement or publicity may state that a practitioner will undertake
specific kinds of work for a specific charge.
8. An advertisement may state that the legal practitioner undertakes a particular
class of work only if he is able and qualified to do that work competently.
9. An advertisement may state that a firm is a specialist in a particular branch of
the law only if it has the requisite expertise in that branch.
10. A legal practitioner may give interviews to the press and take part in radio or
television broadcasts, and may state his name and the name of his firm. But
he must not refer to the name of a client without the client’s written
permission

Fees and Costs

General principle: making a profit should not be the primary goal of a legal
practitioner. Only reasonable fees are permitted. The Law Society regularly issues
a tariff of fees which should be charged in the absence of the client’s written consent.
The tariff fees can be varied according to:

1. The complexity of the matter or the difficulty or novelty of the questions

involved.
2. The specialised knowledge, skill or responsibility required of the practitioner.
3. The place where or circumstances in which the business is transacted.
4. The amount or value of the money or property involved.
5. The importance of the matter to the client.
In many cases, the fees vary according to the practitioner’s seniority

Overreaching
This means the extracting of unconscionable, excessive or extortionate fees by a
legal practitioner, through taking undue advantage of a client. 2 Deliberate over-
charging amounts to misconduct and the legal practitioner must avoid manifestly
excessive charging, particularly if the client is ignorant. Exceeding the Law Society’s
current tariff of fees is unprofessional conduct, and the Society is likely to regard any
of more than 30 per cent above the recommended rate as “materially different”.

On the other hand, as was said in Cape Law Society v Luyt 1929 CPD 281:

“[I]f the prospective client is a free agent, if there is no overreaching, no fraud or

duress, no taking advantage of him, then if the client chooses voluntarily to
agree to an extravagant fee, I cannot say that there would be misconduct.”

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Overreaching extends to people other than clients. A legal practitioner must not
assist a client to recover from a debtor more than is lawfully due, and thus to
overreach the debtor. For example, collection charges must not be included in an
amount demanded from a debtor when they are not claimable.

More generally, a legal practitioner should not assist a client to act dishonourably,
e.g. by negotiating an unfair contract on his behalf.

Under-charging
This is also unprofessional conduct, because it is regarded as a form of touting for
custom. The Law Society’s tariff of recommended fees is in fact a tariff of minimum
fees.

A legal practitioner must charge adequately and properly for his professional
services unless he or she is acting pro Deo or pro amico.
This is something that must be borne in mind by corporate lawyers. In Law Society
of Zimbabwe v Lake 1988 (1) ZLR 168 (S), a corporate lawyer sought permission to
undertake conveyancing work on behalf of his employer. Conveyancing is work
reserved for conveyancers (then legal practitioners). The court held that he could
not do so. The performance of any “reserved work” (i.e. appearance in court and the
preparatory work that precedes such appearance; notarisingdocuments; and
conveyancing) must be done by independent practitioners, not by employees on
behalf of their employers.

“I think it is a fair proposition that any non-registered person who takes into his
employ a registered legal practitioner in order that he may practise the
profession of law on his behalf poses a potential threat to the professional
independence of the practitioner. The mere fact that the practitioner
subordinates himself as a servant puts his independence in the practice of his
profession in jeopardy.” (p. 180D)
This does not apply to legal practitioners in the employment of the State (p. 177E-F)

NOTARIAL DEED
(DISTINCTION BETWEEN NOTARIAL AND UNDERHAND AGREEMENT)
A notarial deed is defined as meaning a deed attested by a notary public, but does
not include—

(a) a document with a signature which is merely authenticated by a notary public; or

(b) a copy of a document which has been certified as correct by a notary public; see
S2 of Deeds registry Act.
Notarial acts have a high degree of authority and are considered probative
instruments, received as firsthand and primary evidence in court, and thereby
accorded high evidentiary value and executory force, and deemed to be proof of
their contents. A notarial instrument also fixes the date at which its parties are bound
without prior delivery and acceptance (as opposed to a deed or contract under
common law) and the data

ADVANTAGES OFNOTARIAL DOCUMENTS

(1)Notary public is an authorized executive that is capable of acting as a consistent,

unprejudiced witness for the signing of significant documents. Moreover, a notary
public also acts as a fair-minded third party for parties intending to enter into a legally
binding agreement

(2)Presumption of regularity;A notary public renders his official duties by marking

documents with his signatures and a distinctive personalized stamp or inked seal.
Further a document that has been witnessed by a notary public has been notarized.
Such document is thereafter considered as authentic and can be used worldwide as
proof of the original. - By certifying the authenticity of the signing parties, a notary
public offers organizations and individuals to enter into contracts as well as carry out
businesses with a reassurance that the notarized and commissioned documents will
be recognized in court, by virtue of being an official act, a presumption of regularity
attaches to the instrument, meaning all prescribed formalities have been carried out,
including the reading over of the instrument.

(3) Notary public is a great way to protect against fraud because it is a requirement
that the signatory of a legal document has to establish his or her identity

4) The appearer always walks away with an instrument that is self-executing, that is,
it requires no further implementing action to be effective and enforceable, just like a
court order.

5) Notarial instruments cannot be altered or overridden by pre-existing or subsequent

private instruments (instruments under hand, deeds, contracts). In other words, for
example, a notarial will could not be amended or superseded by a non-notarial
codicil or will. They also estop (preclude) the appearer(s) from raising most defenses
for setting aside the instrument, including: (1) non es factum, (2) the contents of the
instrument do not correctly express the appearer's intentions, or (3) that there are
reasons why the instrument should not take effect (ultra vires, improper execution,
etc.).

In short notarised documents have the following status at [Link] instruments, if

prima facie duly executed, are:

 Presumed valid and regular;

 self-authenticating
  probative;
 public;
 self-executing; and
 have a fixed, unalterable effective date (data).

PROTOCOL MINUTES AND COPIES

Minute
It is the original document executed before a Notary Public and which must be
signed by him, the parties to the transaction and the witness.

All minutes must be recorded by the Notary Public in his protocol register and must
be preserved in his protocol.

Protocol
It consists of the original documents which were executed before a Notary Public. It
is a place in which all notarial documents are kept in their order of execution. Only
documents which comply with the definition of a notarial deed and are registrable in
the Deeds Registry must be recorded and kept in the protocol

Protocol Register
It is a book which contains particulars of all documents which are filed in the Notary
Public’s protocol. These particulars are put in alphabetical order.

A Notary Public is obliged to keep all notarial documents in order. This was stated in
Incorporated Law Society v Van Eyk1910 CPD 254 at pg261 wherein Maasdorp
JP said:

“carelessness in the custody and preservation of deeds is one of the greatest faults a
notary can be guilty of and unless it is rigorously dealt with it would render the office
of a notary wholly worthless.”

Grosse
It is a copy of a minute. It is a re-typed copy of the original document but it does not
provide spaces for the appearers and witnesses to append their signatures. It is
signed by a notary public and ends as follows:

“Signed by the parties and the witnesses in my presence

Notary.”

Authentication and Certification of a document?

Authentication of documents is the process by which a notary public certify the
identity of the signatory of the document by affixing a certificate to the document
which verifies the authenticity of the signature of the person who signed it whereas
certification of a document is where a notary public or commissioner of oaths
confirms that a document is a true copy or a duplication of the original document.

The main difference is that authentication verifies the truthfulness of the signature on
the document and the identity of the person who signed it whilst on the other hand
certification only confirms that the document is a true copy of the original. When
authenticating a document a notary public also verifies the capacity of the person
who signed the document. On the other hand certification only confirms that the
contents of the duplicate are the same as those on the original document. This
means that the contents of an authenticated document can be a legally acceptable
as true while those of a certified document cannot.

When authenticating a document a notary public issues a notarial certificate of

authentication this means that a seal will be placed on the document whereas when
certifying a document he simply stamps and signs.

Certification of documents can be done by both a notary public and a commissioner

of oaths while authentication can only be done by a notary public, as will be shown
later.

Moreover, for authenticated documents the notary public would be required to keep
an original in his protocol which is known as a minute whereas for certification the
commissioner of oaths is not obliged to keep a copy of the original document

According to the Hague Convention (Abolishing the Requirement for legalization of

documents 1961), authenticated documents are legally acceptable to be used in
foreign jurisdictions whereas commissioned documents are principally used within
the jurisdiction of certification3, hence the purpose and function of the documents
varies.

Under what circumstances can the Hague Convention be utilized for the
authentication of documents?

The Hague Convention (Abolishing the requirements of legalization of foreign public

documents) specifically provides guidelines as to the procedures for authentication
of documents for foreign use; hence it abolished the traditional requirement of
legalization of documents. Therefore as the convention becomes binding on states
upon acceptanceby the respective state, the answer will seek to provide
requirements to be met first for the convention to apply with equal force for
authentication purposes
3
When can the Convention be utilized?
It is worth to note that the applicability of the document depends greatly on the
respective state being a signatory to the Convention. Such a prerequisite is
emphasized by the preamble of the Convention which notes that, “The states
signatory to the present Convention…” therefore the Convention would
automatically not apply if a state is not a signatory to the Convention. Moreover,
other states require domestication of International Conventions thus such a
requirement would also be complimentary on the signatory prerequisite s 11B of the
Constitution. In a nutshell the convention would only apply and be recognized if the
state seeking to utilize it is a signatory.

In addition, the recipient foreign State ought also to be a contracting State and
signatory to the Hague Convention in order for the Convention to apply thus
abolishing the traditional requirement of legalization. This is aptly outlined in the
Preamble, and mainly Article 2 which notes that,

“Each Contracting State shall exempt from legalisation documents to which the
present Convention applies and which have to be produced in its territory. For the
purposes of the present Convention, legalisation means only the formality by which
the diplomatic or consular agents of the country in which the document has to be
produced certify the authenticity of the signature, the capacity in which the person
signing the document has acted and, where appropriate, the identity of the seal or
stamp which it bears.”

Therefore, the states ought to be reciprocally signatory to the Convention lest the
Convention falls away and the traditional legalization procedure applies. In a
nutshell, both States must be signatory to the convention.

Furthermore, the Hague Convention only applies to a specific group of

publicdocuments as postulated by Article1 of the Convention. Therefore, the
convention does not apply to documents 4 not outlined in Article1 and thus to Article
1 provides that,

“The present Convention shall apply to publicdocuments which have been

executed in the territory of one Contracting State and which have to be produced in
the territory of another Contracting State.

For the purposes of the present Convention, the following are deemed to be public
documents:

a) documents emanating from an authority or an official connected with the courts or

tribunals of the State, including those emanating from a public prosecutor, a clerk of
a court or a process-server ("huissier de justice");

4
b) administrative documents;

c)notarial acts;

d) official certificates which are placed on documents signed by persons in their

private capacity, such as official certificates recording the registration of a document

or the fact that it was in existence on a certain date and official and notarial
authentications of signatures.

However, the present Convention shall not apply:

a) to documents executed by diplomatic or consular agents;

b) to administrative documents dealing directly with commercial or customs

operations.

In addition, the purpose of the document would also play a significant part in
determining applicability of the Convention. Hence, only public documents to be
used in foreign jurisdictions for administrative purposes like courts, registrations
(legally admissible) would fall under the purview of the Convention. Moreover, the
purpose of the documents ought to totally tally with the objectives of the Convention
as stipulated in various Articles within the Convention.

It is also prudent to appreciate that those only authenticated documents by persons

satisfying Article 6 and 7 respectively would be legally accurate under the
Convention. Therefore, in order for the convention to be utilized, member states as
noted in Para 1 should have appointed agents recognized to authenticate documents
and also able to legally attach “Apostille” and “allonges”. This was also noted in the
Conclusions and Recommendations of the Special Commission on the practical
operation of the Hague Apostille, Evidence and Service Conventions (28 October-4
Nov 2003)

Conclusively, the Hague Convention requires antecedent requirements like the

above mentioned to be satisfied in order for its operation as far as authentication of
documents is concerned.

procedure followed to administer an Oath in respect of an affidavit.

Before a Commissioner of Oaths administers to any person an oath or affirmation in

respect of an affidavit, he shall ask the deponent:

Whether he knows and understands the contents of the declaration,

Whether he has any objections to taking the prescribed oath, and

Whether he considers the prescribed oath to be binding on his conscience

If the deponent acknowledges that he knows and understands the contents of the
declaration and informs the Commissioner of Oaths that he does not have any
objection to taking the oath and that he considers it to be binding on his conscience,
the Commissioner shall administer the oath by causing the deponent to utter the
words, “I swear that the contents of this declaration are true, so help me God”.

Where the deponent acknowledges that he knows and understands the contents of
the declaration but informs the Commissioner of Oaths that he objects to taking the
oath or that he does not consider it to be binding on his conscience, the
Commissioner administers an affirmation by causing the deponent to utter the words,
“I truly affirm that the contents of this declaration are true”.

The deponent then signs the declaration in the presence of the Commissioner of
Oaths.

Where the deponent cannot write, he shall, in the presence of the Commissioner of
Oaths, affix his mark at the foot of the declaration.

Where the Commissioner of Oaths has any doubt as to the deponent’s inability to
write he shall require the inability to be certified at the foot of the declaration by some
other trustworthy person.

The Commissioner of Oaths then certifies that the deponent has acknowledged that
he knows and understands the contents of the declaration below the deponent’s
signature or mark.

He shall also state the manner, place and date of taking the declaration.

The Commissioner of Oaths shall then sign the declaration and print his full name
and address of business below his signature, stating his designation as well.
PROVISIONS OF THE DEEDS
REGISTRIES ACT AND
REGULATIONS
Deeds Registries Regulations SI 236/2018

PROVISIONS IN REGARD TO THE FOLLOWING

1. Alterations and Interlineations

Regulation 4 provides that such interlineations and Alterations shall be initiated by

the person executing the document and by the attesting witnesses; if there are any.
And if the alteration or interlineations in a document has been attested by a person
who was not the original attestor of the document, the document should be signed by
persons attesting the alteration or interlineations.

Section 10(2) of the Deeds Registries Regulations provides that a Legal Practitioner
shall initial any alternation, addition or interlineations in any document prepared by
him especially those provided for in section 13.

Section 53 states that the Registrar shall refuse to accept for registration any
document other than a notarial deed if such document is not endorsed or initialled as
required by these regulations.
S3(4) states that in any document, any space which has not been used shall be
ruled through.

[Link] in Foreign Language

Regulation 6, the Registrar is empowered to accept for registration documents in
foreign language provided a translation by a competent translator is lodged
therewith. But generally all documents must be in English language.

[Link] and Place of Execution

Section 7 provides that a document tendered for registration or record purposes shall
disclose the place and date of execution unless the Registrar orders otherwise. The
Registrar may dispense withthe requirements of this section if in his opinion the
nature of the document makes it unnecessary to comply with such requirements.

[Link] and Carbon Copies

Regulation 3(3)(a) and (b) states that the Registrar has the discretion to accept a
photographic copy of any document for record purposes only and shall not accept
carbonic copies of any document for registration and filing.

Regulation 3(1)(b) documents should be written in legible characters using

permanent black or blue ink, is the general position of which section 3(3)(a) and (b)
are exceptions.

[Link] of areas of land

Regulation II provides that any area of land described in a document shall be shown
in figures and in hectares to the last four decimal places if it is more than a hectare, if
it is less, insquare metres. There is need to lodge the document with the relevant
diagram endorsed and certified by the Surveyor General.

. The Registrar of deeds may refuse to register a document that has one or
more physical defects in terms of the Deeds Registries Regulations in
SI236/[Link] are some examples;
If the document is not written in the English language and not upon strong white
paper of the international standard paper size A4 (297mm x 210mm) and without a
clear margin of at least 35mm on the left side thereof or if it is written on both sides,
on the right hand side also in terms of section 3 (1) (a)

If it is not written in legible characters and not written using permanent black or blue
black ink or if copying ink is used in terms of section 3 (1) (b).

If the upper half of the first page is not left blank for the purposes of office
endorsements as required by section 3 (2).

If any space which has not been used in the document has not been ruled through
as required by section 3 (4).
Where the document consists of more than one page, if the necessary catchword
has not been written at the bottom of each page. Section 3 (5).

Where a document is expressed in foreign language, if the translation thereof has

not been certified by a person accepted by the registrar as a competent translator.
Section 5

If the writing in the document has been rendered illegible due to faintness or the
folding of the document. Section 5

If the document does not specify the identity of any person mentioned therein in
accordance with the provisions of section 51. Section 8 (1)

If a document adds aliases or assumed names to any name. Section 8 (2)

Where a document refers to a document filed in the deeds registry, if it does not
quote the number and date necessary to identify the filed document. Section 9

Where a document is in favour of a corporate body, if the relevant extract from the
constitution of the body has not been filed of record to show that the transaction
concerned is within the powers which may lawfully be exercised by the body
concerned. Section 12 (1) (b)

POWER OF ATTORNEY
A Notary public is an agent of a principal;therefore we make use of a power of
attorney.

Definition;this is a document in which authority is given to another to act on behalf of

aperson for example to create a notarial deed for a servitude,to sign documents,to
accept a donation etc.

Not only may a notary draw a power of [Link] a power of attorney drawn
by a notary enjoys a particular [Link] grantor of a power of attorney is
competent to prepare a power of attorney on his [Link] a power of attorney is
referred to as an underhand or private power of attorney and is adequate for ordinary
everyday purposes .A power of attorney to pass transfer must however be passed by
an attorney, Conveyancer or a notary.

There are two types of powers of attorney, special power of attorney and general
power of [Link] special power of attorney specific authority is given, for
example to create a collateral notarial bond.

General power of attorney gives general or wider powers to act on behalf of another.

Note however if you are to use the general power of attorney, the original must be
filed together with a copy, one copy will be returned to the agent.
WHAT IS CONTAINED IN A SPECIAL POWER OF ATTORNEY?
(1) The Heading

(2) Grantor; Person giving the authority,she or he is the owner of the property.

Note if it’s a Corporate body there must be proof for example

‘I....duly authorised thereto by resolution of the meeting of board of directors of

Sunshine Limited dated the 27 of November 2013.’

(3) Grantee; Person in whose favour the power of attorney is passed

4Execution clause; Grantor then signs the power of attorney. It depends on where it
has been signed. The following provisions of the Deeds Registry Act apply;

S78 as amended

ATTESTATION OF POWERS OF ATTORNEY

Powers of attorney to pass deeds or to do any act in connection with a deeds
registry shall—

(a) if executed within Zimbabwe, be accepted if executed before a notary public and
witnessed by two witnesses. ;

(b) if executed outside Zimbabwe, be accepted if authenticated—

(i) by a legal practitioner, mayor or person holding judicial office; or

(ii) in the case of a country or territory in which Zimbabwe has its own diplomatic or
consular representative, by the head of a Zimbabwean diplomatic mission, the
deputy or acting head of such mission or a counsellor, first, second or third
secretary, consul-general, consul or vice consul.

TERMINATION OF POWER OF ATTORNEY

A power of attorney terminates

1)On execution of the mandate

2)On completion of the period for which the power of attorney was originally granted

3)On the death of the representative

4)On impossibility of execution

5)When the principle is legally in cable of having his own will for example mentally
incapacitated

6)On cancellation of mandate by representative

7)On revocation of the power of attorney by the principal

FUNCTIONS OF COMMISSIONER
OF OATHS
Regulated byJUSTICES OF THE PEACE AND COMMISSIONERS OF OATHS ACT
CHAPTER 7:09: Ex Officio Commissioners of Oaths: Designation Notice SI
648/1983:Justices of the Peace and Commissioners of Oaths (General)
Regulations RGN 1205/75

A Commissioner of Oaths is someone who has been given the power to administer
and witness oaths. In order to be valid, an oath must be taken before a
Commissioner of Oaths or a court. An oath is a solemn declaration that a statement
is true, and is often needed notary public. The Commissioner ensures that the oath
is properly administered in accordance with the law.
The person taking the oath is called the deponent or the declarant. Validity of the
document is the deponent's responsibility, not the Commissioner's, as the
Commissioner can only verify that the oath has been administered correctly.

In Zimbabwe the appointment of Commissioners is by the Minister of Justice and

Legal Affairs see S6 of the said Act. By virtue of their office, legal
practitioners(Notaries) and all judicial officers like magistrates are automatic
commissioners of oath,ex officio S7, who do not need to be appointed and, as
such, entitled to administer oaths.

Although in the past it was considered unethical for a legal practitioner to charge
foracting as a commissioner of oaths,S10 (2) of the Justices of the Peace and
Commissioners of Oath Act reads:

“Any justice of the peace or commissioner of oath who charges or demands any fee
or reward for doing anything in his capacity as a justice of the peace or
commissioner of oath, as the case may be, shall be guilty of an offence and liable to
a fine not exceeding level seven or to imprisonment for a period not exceeding one
year or both such fine and such imprisonment.”

The Law Society Council has recently ruled that a commissioner of oaths may
charge for certifying copies.

Under S 8 of theAct, commissioners of oaths may not administer oaths in any case
in which regulations prohibit them from doing so or if the commissioner has reason to
believe that the person concerned is unwilling to take an oath. A Commissioner of
oath must ensure that he does not have any interest (material or moral) which is
adverse to his client’s interest.
 Section 2(1) of the Justices of the Peace and Commissioners of Oaths
(General) Regulations, 1998 (SI 183 of 1998):

“No justice of the peace or commissioner of oaths shall attest any affidavit
relating to a matter in which he has any interest.”If he has any interest in the
matter to which the affidavit relates [section 2(1) of Justices of the Peace and
Commissioners of Oaths (General) Regulations RGN 1205/75]. Thus, a legal
practitioner may not swear an affidavit in respect of any matter in which his firm
is involved. In the caseof Phillips in re Post and Telecommunications Corp
&Ors HB-109-93 Manyarara AJ held that an opposing affidavit in an application
was to be disregarded because it was attested to by a partner of the firm
representing the party and was therefore invalid. There was no
opposition to the claim which was granted on the merits.
However, a legal practitioner may attest an affidavit in matters in which he is
involved in the following circumstances.
-1. for a record in the Deeds registry relating to a date of birth, nationality,
matrimonial status, amendment of names or lost deeds or documents.
-2 for a record in any office of the State or a city, municipality, town or rural
council, local board or regional authority.
-3. for the Registrar of the High Court or the Clerk of an inferior court for
placing on record any extracts from the Government Gazette or certificates
of appraisement of sworn appraisers. [Section 1 of the Schedule to Justices
of the Peace and Commissioners of Oaths (General) Regulations RGN 1205/
-4. If he has reason to believe that the deponent is unwilling to make an oath
[section
8(b) of the Act].
Duties of a commissioner of oaths
When swearing an affidavit the commissioner of oaths must authenticate the affidavit
by fixing his seal or stamp to it. If he has no stamp or seal he must certify the
affidavitaccordingly [section 8(2) of the Act].
A commissioner of oaths may never attest a document which he knows is false.
A commissioner of oaths may never change a document after it has been sworn
unlessthe deponent swears to the change and any alteration is signed by both the
deponentand the commissioner of oaths.
A commissioner should not authenticate a signature where he has not seen the signatory
sign, see S v Hurle and others 1998 (2) ZLR 42 (H) at 50, and he should not sign or
procure the signature of blank documents, e.g. powers of attorney

Certifying copies of documents

Legal practitioners are frequently asked to certify copies of documents. Strictly
speaking they should only do so as notaries but it is common practice to certify
documents and such documents are widely accepted. When certifying copies the
 commissioner of oaths must have sight of the original document and should
endorseon the copy the following words.

“Certified a true copy of the original.

Dated ....
(Name) .......... Commissioner of oaths”

What is the difference between a Commissioner of Oaths and a notary?

Differences
Basically, a notary has more power than a Commissioner of Oaths.A Commissioner
of Oaths cannot verify that a statement is true, simply that the proper procedures
havebeen followed.
Notarization as performed by a notary, is the verification of a document as valid. In
addition, a notary can draw up documents, such as contracts and deeds.
A Notary Public can act as a witness, but a Commissioner cannot notarise anything

PART 2 NOTARY NOTES 2022

SERVITUDE
A servitude is a limited real right which entitles the holder of such right to use or to the
enjoyment of another person's property or to insist that such other person shall refrain from
exercising certain rights of ownership over his property which he would have if the servitude
did not exist. A servitude cannot impose the performance of a positive duty on the owner of
the property.

LORENTS V MELLE 1978(3)SA1044Tdefines a servitude as a right belonging to one

person in the property of another entitling the former either to exercise some right /benefit in
the property /to refrain the later from exercing one or another of his normal rights of
ownership...it’s an example of a ius in re aliena, it diminishes an owners dominium in a thing
see EXPARTE GELDENHUYS 1926 OPD 155.

Generally onecannot obtain a servitude on his own piece of land ,however if say you are a co-
owner with another, you can acquire a praedial servitude over the servient land seeMOCKE V
BEANFORT WEST MUNICIPALITY1939 CPD 135.

TYPES OF SERVITUDES

PRAEDIAL SERVITUDES(Real servitudes)

A praedial servitude has been defined as a limited real right which confers on its holder in his
capacity as owner of land (dominant tenement) certain entitlements of use and enjoyment
over the land (servient tenement) of another. SeeBrink P.D. Notarial Practice. Pretoria:
University of South Africa, 2007. Pg 146

Personal servitude
A personal servitude is a limited real right which confers on its holder in his personal
capacity certain entitlements of use and enjoyment over the movable or immovable property
of another for a specified period or for the life time of the holder.

No personal servitude of usufruct, usus or habitatio or any transfer or cession thereof

purporting to extend beyond the life time of the person in whose favour it is created shall be
registered. See Section 58 of Deed Registries Act.

It grants holder of the servitude in her capacity as owner of rights (dominant tenement)
certain entitlements of use and enjoyment over the land or movable assets of another (servient
tenement).Therefore,it does not always vest over a piece of land

DISTINCTION BETWEEN PERSONAL AND PRAEDIAL SERVITUDES

The definitions show a clear distinction between praedial and personal servitudes.

Firstly, it must be pointed out that a praedial servitude vests in a person by reason of his
ownership of certain piece of land whereas the vesting of a personal servitude is not
dependent on ownership of certain piece of land by its holder.

For a praedial servitude the two lands must be adjacent and be in close proximity to each
other. It can also be seen that personal servitudes are not limited to immovables but also
apply to movable property.

A praedial servitude relates to two pieces of land. It is constituted in favour of one piece of
land which is called the dominant tenement over another piece of land called the servient
tenement.5 By contrast, a personal servitude is constituted in favour of an individual on whom
it confers the right to use and enjoyment of another person's property.

A praedial servitude confers a benefit on the dominant tenement and imposes a corresponding
burden on the servient tenement. It is important to note that legal relationships exist between
persons and not things and that the right of servitude can only be exercised by a person and
be enforced against another person. Thus, a praedial servitude is vested in the owner of the
dominant land who is entitled to enforce it against the owner of the servient tenement.

It follows from the above that a praedial servitude is registered against the title deeds of both
the dominant and the servient tenement whereas a personal servitude is only registered
against the title deeds of the servient tenement. Notice must also be taken of the fact that the
reasoning for having a praedial servitude registered against both title deeds is premised on the
reasoning that praedial servitude binds successors in title of both lands, and strictly speaking
personal servitudes can only be registered if they bind the successors in title of the servient
tenement.

The praedial servitude is exercised by the owner of the dominant tenement and his successors
in title against the owner of the servient tenement and his successors in title. Neither the
benefit nor the burden can be detached from the piece of land on which it is conferred and
imposed respectively. The burden and the benefit 'run with the land'. On the other hand, a
personal servitude vests in the holder personally and so it is not transferrable by its holder.
This was articulated in the case of Willoughby's Consolidated Company Ltd v Copthall
Stores Ltd where the court held that the right conferred by a personal servitude is inseparably
attached to the beneficiary. He cannot transmit it to his beneficiary or alienate it and when he
dies, it perishes with him.

However, it seems that some personal rights can by agreement be made perpetual and
transferrable. This mainly relates to mineral rights. It is essential to note that some texts refer
to them as quasi-servitudes or real rights sui generis. The critical point to note is that some
personal servitudes commonly referred to as personal servitudes par excellence, like usus,
habitatio, usufruct, are strictly personal and end with death. This is reinforced by section 59
of the Deeds Registries Act [Chapter 20:05] which provides that the personal rights of
usus, habitatio and usufruct shall not be registrable.

A praedial servitude is indivisible whereas a personal servitude is divisible. For a praedial

servitude this means that the owner of the dominant tenement cannot acquire a servitude only
in favour of his undivided share. For a personal servitude this means that a personal servitude
may be granted in respect of an undivided share in property which is jointly owned.

5
 Requirements for preparation and submission of deed of servitude(sec58Deeds registries
Act)
(a) contains a full description of any land against or in favour of which the servitude is to be
registered or endorsed, including the numbers and dates of the title deeds, and the full names
of the grantor and, where practicable, the grantee of the servitude; and

(b)be executed by the owner of the land encumbered by the servitude and the owner of the
land in favour of Which or the person in whose favour the servitude is being created:
Provided that, where the servitude is being created in favour of the public or of all or some of
the owners or occupiers of stands or lots in a township, the registrar may, if in his opinion it
is impracticable for Such persons to execute the deed, dispense with such execution of the
deed; and`

c) be attested by a notary public: Provided that this paragraph shall not apply to a deed of
servitude such as is referred to in section sixty-three if the signature of each person executing
the deed is witnessed by two competent witnesses or by a commissioner of oaths and the
signature of each witness or the commissioner of oaths, as the case may be, has been affixed
thereto in the presence of that person.

(2) Two signed originals or a signed original and a copy certified by notary public shall be
submitted to the Registrar for registration.

Registration of a servitude
Provision under section 57 apply (3) In registering any servitude which is being created in
terms of subsection (1), a registrar shall—

(a) where the servitude is being created in terms of paragraph (a) of subsection (1), endorse
the title deed of—

(i) the land encumbered thereby; and

(ii) any land in favour of which that servitude is being created; or

(b) where the servitude is being created in terms of paragraph (b) of subsection (1) and the
title deed in which the servitude is being created relates to—

(i) the land in favour of which that servitude is being created, endorse the title deed of the
land encumbered thereby; or

(ii) the land encumbered thereby, endorse the title deed of any land in favour of which that
servitude is being created.

Cancellation of registration of servitude

Section 60 provides steps to be taken for different situation;

(1) Subject to subsections (2) and (3), cancellation of the registration of a servitude in
pursuance of an agreement between the owner of the land encumbered there by and the
holder of the servitude shall be effected by notarial deed.
(2) If a servitude is mortgaged or the dominant tenement is mortgaged, the consent in writing
of the holder of the bond to the cancellation of the registration of the servitude shall be
produced to the registrar.

(3) Cancellation of the registration of a personal servitude may, subject to the agreement
constituting the servitude, be effected by lodging with the registrar a written consent by the
holder of that servitude for the cancellation of the servitude.

(4) If for any reason a servitude has lapsed, the registrar shall, on written application by the
owner of the land encumbered thereby, accompanied by proof to his satisfaction of the lapse
of the servitude and by all the deeds Affected thereby, note on such deeds that the servitude
has lapsed.

CHANGE OF NAME
A name change is a legal act recognised in practically all legal systems that allow an
individual to adopt a name different than their birth name. Changing a surname can only be
done by a notary public.

COMMON LAW RELATING TO A CHANGE OF NAME

Under common law, prescribed formalities and technical procedures, to the change of one’s
surname, are non-existent. The common law allows a person to freely change his surname
without any impediments. The classic case of Ex parteHalfsland 1917 CPD 529
at530highlights this proposition. In that case the court stated that the court does not have the
power to authorise a person to change his surname but there is nothing preventing a person
from doing so. A similar decision was reached in M v A and Anor 1981 ZLR 306, wherein
Gubbay J stressed the point that under common law one could change their surname
whenever they thought like it.

A notable example would be in regard to women. Upon marriage the wife may assume her
husband surname. All that is required for her maiden surname to cease and the husband’s
surname to flourish, a woman would begin to call themselves by the surname of their
husbands.

Basically, for one to successfully change a surname under common law all they have to do is
to use that surname, consistently openly and in a non-fraudulent manner

The test was simply that one had to adopt a surname, to the extent that the public
acknowledges him by the new surname and that such surname should not be injurious to
public interests.

In as much as one enjoys unfettered right to change their surname, the situation is not the
same with children, consent of the father was a necessity. A passage in the English case of
Re I (OtherwisH)(an Infant)(1992) 3 ALL ER 970 at 971 Buckley J said:-

“a child of a tender age cannot of their own motion change their surname as this
involves a conscious decision which primary right resides with the father as the natural
guardian.”

The rationale was that a minor is not competent to comprehend the intricacies and
significance/importance in the change of one’s surname.

Because our society is patriarchal, fathers are viewed as the family head bearing enormous
influence on the question of changing a minor’s surname. The case of Y v Y 1973(2)ALL
ER 234 at 235 dealt with a situation whereby the parties had divorced and the wife had been
granted custody, a unilateral decision by the wife to change the surname of the children to
acquire her second husband’s surname was viewed as an infraction on the residual rights of
the father as the natural guardian. It was held that under common law parties could change
their children’s surname anytime and that such change could only be effected if there was
consensus between the parents.

STATUTORY PROVISIONS AND THEIR SIGNIFICANCE

When a name is registered it cannot be changed without proper procedures being followed. It
is a crime to change the information on a birth certificate. A name which is not spelt correctly
can be changed easily. One goes to the Registry and fills in a BD 22 form and an affidavit
stating why the name was not spelt correctly. If the Registrar is satisfied, he /she Will issue a
new document. There is an inherent right to change a surname with very little legal
impediment.
How to change one’s surname:
1)It is done by way of a Notarial Deed of Change of surname drawn by a Notary Public. In
the case of a minor there is need for consent of the guardian S18(3) In case of Children’s Act
requires signature of adopter/guardian S71(1)(b)

2)Registration of Notarial Deed in the Deeds Registry s18(3)(a). The deed is stamped and
returned to the Notary. At this point the deed is examined for compliance with regulations

3)Advertised on the Gazette

A notice is published in the Government gazette showing that a person so changing a

surname it calls for any objections, for example that the change so actuated by malice or
fraud.

A copy of the notice and the notarial deed are taken to the Registrar of births and deaths with
application to effect change of surname on Birth Certificate s18 (3) (b).

The relevance for requiring compliance with statutory provisions is to give legal recognition
to change of surname and its safeguard against fraud promoted by a malafide change of
surname – Notarial deeds are drawn by a notary public whose office is of great public respect
and regarded as of high esteem. For example notaries public are duty bound to exercise care
and caution in the drafting of notarial deeds.

DONATIONS
The term donation refers to an agreement whereby a person gives or promises to give
something to another without receiving, expecting to receive or demanding anything in
consideration. The transaction enriches the donee and not the donor in any way. Donations
are normally divided into two: a donation inter vivos and a donation mortis causa.

DONATION INTERVIVOS
A donation inter vivos is a contract which takes place by mutual consent of the giver, who
divests himself of the thing given in order to transmit the title of it to the donee gratuitously
and the donee who accepts the thing requires a legal title to it. A valid donation inter vivos
requires the intention of the donor immediately to pass title (not necessarily possession to the
donee. It also requires delivery of the property to the donee, which may be actual/physical,
constructive or symbolic. There has to be acceptance by the donee as well which is normally
implied by silence and can only be negated by express rejection. Voet holds that a donation
is inter vivos even where the delivery of the donated res is to take place after the death of the
donor and where the donation is not made in contemplation of death provided acceptance has
to be done well before death.

Importantly, once all requirements are met, a valid gift inter vivos cannot be revoked by the
donor.

DONATION MORTIS CAUSA

A donation mortis causa is a gift made by a person in sickness, who apprehending his
dissolution near, delivers or causes to be delivered, to another the possession of any personal
goods and keep as his own in case of the donor’s decease.

The civil law defines it to be a gift under apprehension of death as when anything is given
upon condition that if the donor dies, the donee shall possess it absolutely or return it if the
donor should survive or should repent of having made the gift or if the done should die before
the donor. A gift in view of death is one which is made in contemplation, fear or peril of
death and with intention that it shall take effect only in case of the death of the giver.

A valid gift mortis requires:- donative intent, delivery, acceptance and additionally the
donor’s anticipation, at the time of the gift, of imminent death, the donor’s actual death. If
the donor recovers, the gift is automatically revoked. Similarly, if the done dies before the
donor, the gift is revoked. And, unlike a gift inter vivos, the donor may always revoke.

Meyers and Others v Rudolph Executors 1918 AD 70at 80.

The gift before she dies, even after the first four requirements above have been satisfied.
Also distinguishing gifts causa mortis is the fact that they must be gifts of personal property,
real property (interests in land, etc) cannot be conveyed by gifts causa mortis.

N.B. The key difference lies in the gift’s revocability.

TRUSTS
A trust is created when its founder “hands over or is bound to hand over the control of an
asset which, or the proceeds of which, is to be administered by another (the trustee or
administrator) in his capacity as such for the benefit of some person (the beneficiary) other
than the trustee or for some impersonal object” [The South African Law of Trusts Honoré 3rd
Edition]. In other words there is a separation of ownership, management and enjoyment.
Essential elements of a trust
The essentials of a trust are that the founder intends to create the trust and his intention is
expressed in a form which creates a legal obligation to found the trust. The founder must also
define the trust assets and the trust objects which must be lawful. An obligation must be
placed on the trustee to administer the assets for the benefit of another person or object and
he must be independent and have control over the assets of the trust.

Public nature of a trust

Because the position of a trustee is a public office, the courts have jurisdiction over trusts.
However, courts have very limited powers to vary a trust deed except in the case of necessity
or where the object of the trust has been frustrated. It is for this reason that the trust deed
must be carefully and comprehensively drafted.

Distinction from English law

The law of trusts under English and South African law developed differently. Trusts in
English law were evolved by the Court of Chancery based on equity. The RomanDutch law
of trusts developed through stipulation alteri or contracts for the benefit of a third person.
Thus, extreme caution must be exercised in referring to English texts and cases.

Types of trusts
There are many types of trusts and the following list is not exclusive.

1. Statutory trusts such as the Rhodes Trust are established in terms of legislation.

2. Testamentary trusts are those created in a will.

3. Donation trusts are very common in estate planning and when setting up a charitable
institution. They involve the donor in donating assets to be used for the purpose for which the
trust is established.

4. Educational trusts are frequently used to establish a school or to provide scholarships or

bursaries.

5. Debenture trusts are established for the protection of debenture holders where a number of
people lend money to a company and there is a need to control strictly the rights of the
lenders or debenture [Link]

Parties to a trust
The parties to a trust are the founder or donor, the trustee and the beneficiary who may be a
natural or a juristic person.

If necessary, a court will appoint and may remove a trustee but the Master of the High Court
has no right to appoint or supervise a trustee except in insolvency.

Duties of a trustee
The duties of a trustee under common law are as follows.
1. He must provide security. Many trust deeds dispense with the need to give security.
2. He must take possession of and, where appropriate, acquire ownership of theassets;

3. He must act as a diligens paterfamilias in caring for the trust assets.

4. He must distribute the income and capital of the trust in accordance with its objects.

5. He must act impartially.

6. He must disclose necessary information to the beneficiaries.

7. He must account for his actions.

[Link] to exercise due care and diligence was discussed in de Villiers v James 1996 (2)
ZLR 597 (S)

If a trustee fails in his duties, he may be liable to beneficiaries under the Aquilian action. The
personal right against trustee regards to property sold to innocent third party — damages —
how to be assessed see case of Jolly v Shannon &Anor 1998 (1) ZLR 78 (H)

Powers of a trustee
A trustee has only those powers granted to him in the trust deed. A court has little rightto
interfere except as already discussed.

Variation of a trust
A trust may be varied by the agreement of the founder, trustee and beneficiaries. It may also
be varied by the founder and the trustee before acceptance by the beneficiaries of the benefit
of the trust. In limited circumstances the court may vary a trust. Such circumstances include
necessity, frustration of the trust objects and the need to sell property.

Drafting of trust deeds

A trust deed is a notarial document but it is not necessary to register the trust in the deeds
office. A trust does not have any implied powers. It stands or falls by the trust deed
establishing it. Consequently, trust deeds are usually complex documents and different types
of trusts will have different clauses. The following clauses are common to most trust deeds .

The following clauses are relevant to the trustees.

Appointment of the first trustees.; The power to appoint additional trustees either to fill a
vacancy or to increase the; number of trustees.; Control of meetings of the trustees.;
Dispensing with the need to lodge any security.; Resignation or retirement of trustees.;
Remuneration of trustees including professional services, fees and expenses.; Indemnification
of trustees.; Administration of trust funds, eg payment of capital and income to
beneficiaries.;Disposal of trust assets on termination.
Wide interpretation of powers
Generally, it is provided in a trust deed that there will be a wide interpretation of the powers
given to the trustees.

Simple trust
A testator may want to create a trust in his or her will, for example where the beneficiaries
are minors. An administrator must be appointed for the trust, and the will must give the
administrator adequate powers to allow him to carry out the testator’s intentions.

Where the trust is for the benefit of a minor, the testator must consider the age at which the
beneficiary’s capital can be paid over to him. Any age of 18 can be chosen.

Example:

“Should any of my heirs not have attained the age of majority on my death, the
heir’s inheritance shall not vest in him or her but shall devolve upon my
administrator in trust to sell, call in and convert it into money, with power in his
discretion to postpone such sale, calling in or conversion and to invest and
reinvest such moneys in whatever manner and upon whatever security my
administrator in his absolute discretion thinks fit.

My administrator may pay to the guardian of each such heir, or otherwise utilise
the income and, if necessary, the capital of the trust for the maintenance,
education and general advancement in life of the heir until he or she attains the
age of … years.

As each such heir attains the age of … years, my administrator shall pay to him or
her his or her share of the capital and undistributed income, if any, of the trust.

My administrator may borrow for the purpose of the trust such money as he may from time to
time think fit, and my pledge, cede, mortgage or otherwise encumber the assets of the trust as
security for the loan

The advantages of creating a family trust:

The living trust has lots of advantages due to which it has become so very popular. It should
be noted that the benefits which stem from a family trust are social and financial. If it passes
the family control test and makes distribution of the trust income to beneficiaries, then it is
provided with certain tax benefits. Bankruptcy or insolvency and other business misfortunes
can be overcome through protection of personal assets. It is a method to hand over the
family’s assets to future generations. It gives access to favorable tax treatments by ensuring
that all the members can utilize their income tax, it protects the property in trust from
matrimonial disputes and assists in the management of family assets. It has many other
benefits which are procurable only when it is correctly set up. Overally a family trust has
been held advantageous than a standard will, this will be canvassed in greater.
 Protects the property from creditors

It has been submitted that when a family trust is established there is transfer of legal
ownership of the property into the name of the trust. This protects the property from being
reclaimed by debt collectors, because if property is a legal property of the trust it cannot be
reclaimed as a personal debt security, unless if it was gifted to the trust during the financial
period to evade the legal sanction. In this context it simply means that such property is even
protected in the event of bankruptcy. In the Australian jurisdiction when assets are placed in
an irrevocable trust they are shielded from creditors and lawsuits. The advantageous aspect
comes on the fact that the settlor whowill be the debtor might be using or dwelling on the
property in the case of a house. It makes the property under trust sacred.

Keeps the property separate from matrimonial property

This is another advantage which is attached to family trusts. The property placed under the
trust is ultimately kept separate from matrimonial property. This is a merit on the basis that in
the event of a divorce, the property in the trust is left untouched. Generally matrimonial
disputes mostly result in the property being distributed unevenly amongst parties. In this
regard a family trust secures the property for beneficiaries without it being tampered with.
Coupled to this, in the situation of the beneficiaries, who might be children, the assets will
not form part of their personal property and therefore cannot be subject to claims by their
partners. Aptly this brings a social benefit which is associated with establishing family trusts.

Tax benefits

Family trusts provides protection against various forms of wealth tax which may be
introduced in the future such as death duties or inheritance tax. Most families use family
trusts to minimize the inheritance taxes associated with the transfer of wealth from parents to
children. In the United States, one of the primary tax benefits of a family trust is that
beneficiaries are not required to pay income tax on income that is distributed from the trust.
Income may be distributed in such a way as to enable all beneficiaries to take advantage of
the tax-free income thresholds. The trust must pay income taxes on undistributed income that
remains after the taxable year. Trustees have the authority to distribute the trust's income to
the maximum number of beneficiaries. They must also consider the beneficiary's ability to
maximize the tax advantages of his marginal tax rate. Beneficiaries are responsible for
settling taxes due on all income, including distributions. In the Australian jurisdiction family
trusts reduce the estate tax liability on the beneficiaries. By establishing the trust as
irrevocable, one can remove assets from his estate thereby lowering its value until the assets
are underthe limit required for estate tax exemption. Concisely this protects the property
under trust from all frustrations which are associated with tax law.
Generates income

It is submitted that trustees can make investments in the name of the trust. For instance, a
trust might use some of the property it holds as a bed and breakfast to create income that will
go towards the upkeep of the property. The trust can provide the beneficiaries with income
and /or capital to meet their legitimate cash requirements as they arise. This can protect the
long-term value of family property.

Not easily revocable or altered

Family trusts on this basis are regarded advantageous as compared to standard wills, basing
on their typical simplicity. The powers of the grantor and trustee are normally considered
irrefutable. Generally, a standard will is susceptible to contestation due to the fact that it is
public in nature. The probate process can drag on and costs the beneficiaries considerable
money in legal costs. However, a family trust allows the bypassing of the probate court,
instead the assets are distributed by a successor trustee as provided for in the trust deed. Also,
on the confidential aspect family trusts, unlike standard wills, are not publicly registered and
the details of the family trust arrangement is kept confidential.

EXECUTION AND DRAFTING OF

WILLS
Legislation governing; WILLS ACT CHAPTER 6:06

A will is an instrument by which a person makes a disposition of his property to take effect
after his decease and which is in its own nature ambulatory and revocable during his life.

The definition in the Wills Act provides;S2 “will” includes an oral will, a codicil and any
testamentary writing but does not include a document evidencing an ante nuptial contract or
other transaction of a contractual nature.

A will only takes effect after the demise of the testator and as such certain formalities have to
be met to ensure the validity of a will. These formalities are aimed at ensuring that the
intention of the testator is met. The issue that has sparked controversy in the legal field is
whether the intentions of the testator rather than the formalities of making a will set out in the
Wills Act should determine the validity of a will. Some scholars are of the view that the
intention should be upheld over the formalities whilst others argue that the formalities should
be the basis of determining the validity of a will despite the intention of the testator

drafting wills
Wills must be drafted particularly carefully because the testator cannot be asked to clarify his
or her intentions when the will becomes operative. Great care must be taken to ensure that
accurate instructions are obtained and that the client understands the implications of all the
provisions of the will. Clients are often discouraged from drafting their own wills, because of
the problems that arise from poor drafting.

Execution of wills
After drafting a will, client is given an adequate opportunity to study it before it is signed.

It is vital to ensure compliance with the Wills Act regarding the signing of a will. Try to
arrange that the will is signed in your office to ensure that it is done properly.

Formalities of making a Will

Formalities of making a Will: S. 9 Wills Act 1837

There are three main formalities in making a will and it is important that these are followed.
If not, then this testamentary document will not be valid and the deceased’s estate might
likely be distributed under Intestacy Laws.

What are these Formalities?

While the formalities appear to be very basic, the will may be invalid if these are not
followed:

1 The will must be in writing. S 8 (1) (a) Wills Act (Chapter 6:06

The will must either be written in ink or in pencil although it is advisable that ink be used. It
is advisable to avoid using both ink and pencil because this can lead to the belief that the
testator (person making the will) was still undecided about whether the part written in pencil
should be a permanent part of the document or was just deliberative. This can lead to
complications after the death of the testator.

Interestingly enough, the law also provides for unwritten wills known as Privileged Wills.
Privileged wills are wills made informally by a testator who has privileged status. Privileged
status is granted to soldiers, mariners or seamen who are in “active military service”.
Situations where privileged wills may occur is when a soldier, who is mortally wounded in
combat, makes a statement or oral disposition of his property to another person before he
dies.

2 The testator must sign the document. S 8 (1) (b) Wills Act

Any mark made by the testator on the document validates the will provided that he intended it
to be his signature and that this signature is meant to execute the will. So for example, if the
testator is illiterate and uses his thumbprint to as his signature to execute the will, the will is
valid.

Normally, the signature must be at the end of the page of the will. There are instances
however, that the signature is not at the bottom of the page but on the side of the page
because there may not be enough space for the signature. There may also be situations when
the testator only gives a partial signature because she/he is weak to complete the signature.
The will shall still be considered valid as long as the testator intended that the mark or the
signature was meant to attest that this was his last will and testament. Where the signature is
not complete or where questions arise as to the way the will was executed or made, external
evidence (e.g. affidavit of due execution) must be given by the attesting witnesses or the
solicitor/legal executive who attended to the execution of the will. The testator (or his
appointee) and the witnesses must sign each page as near as possible to the end of the writing

3 There must be two witnesses to attest to the testator’s signature and to the correct execution
of the will. S 8 (1) (c) Wills Act. The signatures of the testator or his appointee must be made
or acknowledged (by the testator) in the presence of two competent witnesses who are both
present at the same time.i.e the witnesses must see the testator signing or executing the will.
If even one of the two witnesses does not see the actual signing of the will, the will shall be
considered invalid. It is, therefore, very important that the witnesses should be aware of and
see the testator signing the document. It is not necessary for the witnesses to know the
contents of the document. After attesting to and witnessing the signing of the will, the
witnesses must attest the will by signing and acknowledging his signature in the presence of
the testator.

In Janda v Janda 1995 (1) ZLR 375 (S) to satisfy compliance with the formalities when it
comes to signature of witnesses their full signatures are required, not merely initials.

4. Beneficiaries should not be witnesses

The chosen witnesses should not be beneficiaries to the will. If any beneficiary witnesses the
signing of the will, that person will lose whatever gifts or bequests she/he is entitled to under
the will (S15 Wills Act 1837). If a beneficiary witnesses the signing of the will, it does not
make the will [Link] witness must be capable of attesting at the time the will was
executed. A minor can witness a will but not a young child since he/she will not be capable of
understanding the importance of witnessing the will’s executionAnyone over the age of 16
who is competent to be a witness in court, and who can see the testator sign a will, is
competent to be a witness to a will. A blind person will not be an appropriate witness to the
will’s execution. A person who is very drunk or of an unsound mind will also not be capable
of attesting to the will. But remember: a person who benefits under a will cannot be a
witness to that will. If the will is signed by the testator’s appointee it is valid only if, before
the testator’s death, a magistrate, presiding officer, justice of the peace or commissioner of
oaths certifies on the will that he is satisfied as to the testator’s identity and that the will is the
testator’s will. That person must sign each page. Alternatively, a court may state that the
will is valid (though this will require an application to the court).

Documents may be annexed or referred to a will to explain or expand on the provisions of the
will, and such document need not be signed and witnessed as a will (sec 14 of the Act)
Essentials of a will
Effect of marriage
A will generally becomes void upon the subsequent marriage of the testator (sec 16(1) of the
Act).

Where the testator’s marriage is annulled or dissolved, any disposition to a former spouse
lapses and any appointment of a former spouse falls away, unless the will clearly indicates
that the testator’s intention was otherwise (sec 17 of the Act). In such a case it is much better
for the testator to make an entirely new will

Revocation clause
This is necessary to make it clear that the testator is revoking any previous wills totally, not
partially:

“I revoke all former wills made by me.”

Nomination of executor
Executors are nominated by the testator and appointed by the Master of the High Court.

It is usual to exempt an executor from providing security. The Master may still require him
to provide security, but not to cover all the assets of the estate — only the liabilities and the
value of the legacies.

As indicated in the checklist above, if a professional person is appointed as executor or

administrator it is a good thing to allow him or her to charge professional fees for work done
in addition to that of executor.

Example 1 (nomination of relative):

“I nominate my wife ABC to be the executrix of my estate, with all the power and
authority that is allowed or required by law, in particular the power of assumption.
I exempt her from providing security for the performance of her duties.”

Example 2 (nomination of professional person):

“I nominate one of the partners for the time being of the firm of …, Legal
Practitioners, of … to be the executor of my estate, with all the power and
authority that is allowed or required by law, in particular the power of
substitution. I exempt him from providing security for the performance of his
duties, and I authorise him to receive from my estate the normal executor’s
commission and the normal fees for any work which he may do in a professional
capacity.”

Beneficiaries
Identification of beneficiaries must be clear. Ensuring that their correct names are used and,
if there is likely to be any confusion, identifying them by some distinguishing feature, e.g.
their relationship to the testator or someone else is prudent.
If a bequest is made to a class of person (e.g. the children of a particular person) describing
the class accurately (e.g. “the children of my son A who are alive at my death”).

Bequests
A beneficiary is entitled to property bequeathed to him free from any liabilities or burdens on
it, unless the will indicates the contrary. So if a will bequeaths a house over which there
exists a bond, the executor must use the residue of the estate to free the house from the bond.
This may not be the testator’s intention

“Thirty-day” clause
This provides for the near-simultaneous death of the testator and the principal beneficiary
(e.g. a testator husband who is killed in the same road accident as his beneficiary wife). It
avoids double death duty. If the clause is not included, where a couple die simultaneously or
within a close time of each other duty is payable on the estate of the first to die and again on
the enhanced estate of the second.

Example:

“If my wife, … , survives me for thirty days or more, then I bequeath the whole of
my estate to her.”

Per stirpes clause

This provides that if a beneficiary predeceases the testator, the children of the beneficiary will
take the beneficiary’s share of the estate, the share being divided equally between the
children.

Example:

“I bequeath the whole of my estate in equal shares to my children. If a child of

mine has predeceased me leaving surviving issue, the issue shall stand in the place
of that child and take per stirpes the child’s share of my estate.”

Conclusion
A conclusion to a will is often as follows:

“Signed at … on the … day of … , 20…, in the presence of the undersigned

witnesses, who signed in my presence and in the presence of each other, all being
present at the same time.”
NOTARIAL BONDS
A notarial bond is a bond hypothecating movable property of a debtor as security for a debt
and it is registered in the Deeds Registry office by the Registrar of Deeds

Notarial bonds are defined as a bond attested by a notary public hypothecating movable
property generally or specially, S 2 of the Deeds Registry [Link], it can be deduced from
the above definition that there are two types of notarial bonds, a general notarial bond and a
special notarial bond. A general notarial bond governed by the common law, hypothecates all
the movable property of a debtor while a special notarial bond is registered over specific
movable property of the debtor.

THEIR DISTNCTION WITH MORTGAGE BONDS

Section 2 of the Deeds Registries Act [Chapter 20:05] defines a mortgage bond as a bond
attested by the Registrar of deeds, hypothecating immovable [Link] definitions of a
mortgage bond and a notarial bond were both stated in the case of The Land and Agricultural
Bank of Southern Rhodesia v Jameson 1970(1) RLR 146.

From these definitions appears two differences, the first one is that a mortgage bond
hypothecates only immovable property while a notarial bond hypothecates movable property.
The second difference is that whilst a notary public attests to a notarial bond, mortgage bonds
are attested to by the Registrar of Deeds. The Registrar can still register the notarial deed but
such registration is not the act that renders it effective, it becomes effective after being
attested to by a notary public. A mortgage bond however becomes effective after registration
in the deeds registry.

Mortgage bonds confer real security in the sense that the debtor cannot alienate the property
so hypothecated without the consent of the mortgagee. The notarial bond however does not
preclude the debtor from alienating the property even without the consent of the bondholder. 6
Unlike with the registration of mortgage bonds, the registration on notarial bonds does not
necessarily signify notice to a third party that such property is hypothecated. Thus the
creditor cannot vindicate from a bona fide third party who has acquired the property.

6
Another difference comes in the particularity levels of the property clause in both documents.
A mortgage bond can only hypothecate a particular immovable property. This means that the
property in the mortgage bond must be specific. On the other hand a notarial bond can be a
general or a special notarial bond. A special bond hypothecates a specific movable property
and a general notarial bond hypothecates all the movable property of the debtor without
particularly describing the property in question.

It must also be noted that the parties to a mortgage bond are called mortgagor and mortgagee
whilst the parties to a notarial bond are called notarial bond holder and drawer. It is also
critical that a mortgage is noted on the hypothecated property’s title deeds in the deeds
registry whereas that is not applicable to notarial deeds.

CATEGORIES OF NOTARIAL BONDS

Bonds are categorised with reference to the nature of the relevant cause of debt of the
principal debt issuing the bond. The following are the most important notarial bonds

-Collateral notarial bond

- Notarial surety bond

-Notarial covering bond

-Notarial indemnity covering bond

The following provisions under section 55 of DR Act apply to registration of notarial bonds;

(1) Every notarial bond executed before, on or after the 31st December, 1971, shall be
registered in a deeds registry within the period of three months after the date of its execution
or within such extended period as the court may on application allow.

(2) A signed original for filing in the registry as the registry duplicate, together with two
further originals or grosses or copies of the bond certified by a notary public shall be tendered
for registration. The registrar who registers such bond shall transmit to the registrar in charge
of the other deeds registry one such original, grosse or copy of the bond for registration by
him.

RANKING
Priority under a notarial bond to secure the payment of future debts depends on the date of the
registration of the notarial bond,and not on the date upon which the debt comes into existence.

Notarial bond over movables

Movables may be mortgaged by a notarial bond which must be registered in the
Deeds .Office within 2 months of the date on which the cause of action arose. General bonds
mortgage movables generally and usually refer to all movables. Special bonds relate to
specific assets such as stock in trade.

The owner may sell or deal in the movables bonded and the security is only effective on his
insolvency. Thus, if a debtor were to dispose of the bonded movables prior to insolvency, the
creditor would be unable to rely on his security to recover his debt.

Cessions
A cession of rights, such as rights under an insurance policy, is made by agreement of the
parties and delivery of the document, if any, which records the right.

Notice should be given to the debtor, e.g. the issuer of the policy, so as to ensure thatpayment
is made direct to the cedent (the creditor).In terms of section 100 of the Insolvency Act an
effective cession of book debts,excluding those listed in the section (such as a cession on the
transfer of a business) must be effected by a notarial deed of cession registered in the deeds
office.

Subsections 98(3) and (4) set out the requirements.

The debtor is entitled to raise against the cessionary any defence to the original debt that he
had against the cedent and thus in many cessions the cessionary requires the cedent to give
some form of indemnity to cater for defences to his claim.

SURETY AND INDEMNITY BONDS

Suretyship is a contract in terms of which one person (the surety) agrees with the creditor of
another (the principal debtor) to perform the obligations due to such creditor by the principal
debtor if and in so far as such principal debtor fails to do so. The surety doesn’t replace the
principal debtor and doesn’t join him as co-debtor but that such surety’s obligation arises
only in the event of the principal debtor’s failure to perform. The debtor remains bound to
the creditor for the principal obligation.

Suretyship is not an independent obligation but is always accessory to a principal valid

obligation; the surety’s obligation is accessory to the obligation of the principal debtor. A
surety contract can only exist when the principal obligation is in existence. Though many
suretyship contracts are concluded almost simultaneously with the creation of a principal
obligation, a suretyship contract maybe concluded for an already existing obligation as well
as future obligations yet to be incurred, provided the obligation doesn’t arise until the
principal obligation has come into existence.
In many security documents, the signatory is called upon to renounce various legal benefits
and he is usually required to state that he understands them. Many lawyers themselves do not
know what they mean: the following is a guide.

RENUNCIATION OF EXCEPTION CLAUSES

When the principal debt is due the creditor can approach either the debtor or the surety – it is
not necessary to claim from the debtor before approaching the surety. The surety has
defences available to him should this occur:

Benefit of excussion (beneficiumordinisseuexcussionis) – the surety may demand that the

creditor proceed first with the debtor to obtain the payment, if necessary by execution upon
his assets before turning to the surety for payment of the debt or that portion thereof as
remains unpaid.

Benefit of division (beneficiumdivisionis) – a co surety who is liable in solidum(for the full

amount) has the right to demand from the creditor that the debt be divided among all the co-
sureties in order that he be held liable for his pro rata share only.

Benefit of cession (beneficiumcedendarumactionum) – where there are two or more sureties

in respect of one obligation. A co-surety who has paid the principal debt in full may demand
that the creditor cede to him all the rights and securities which such creditor has against the
principal debtor and other sureties.
Exceptio non causadebiti
This is translated as “no cause for the debt”. The renunciation relieves the lender from having
to prove that there was a just cause for the debt.

Exceptio de errore calculi and revision of accounts

These two exceptions mean much the same thing. They are usually renounced when the
obligation relates to any matter involving calculations. The debtor should satisfy himself that
the amount has been correctly calculated.

Exceptio non numerataepecuniae

A lender is entitled to repayment of a loan only where it has been received by the borrower.
Where the exception is renounced, the onus is on the borrower to show that he did not receive
the money.

Recourse against the principal debtor - an ex lege obligation is imposed upon the principal
debtor to reimburse the surety to the amount of debt he has paid plus loss suffered or
expenses reasonably incurred

Recourse against co-sureties – a surety who has paid the principal debt is ex lege entitled to
claim proportionately from each co surety his share of the debt

NOTARIAL DEBENTURE BONDS

Debentures
Debentures are acknowledgments of debt issued by companies in respect of loans and give no
security in themselves. They are records of the loan. They may be distinguished from shares
in that the company need not earn a profit before payment of interest is made to a debenture
holder. In addition, they do not give debenture holders any voting rights. Debentures may be
issued to individual debenture holders or, where there is a large loan made by many lenders,
in terms of a debenture trust deed. The lenders who have participated in the loan hold
certificates evidencing the amount lent by each, issued in terms of the debenture trust deed
and their rights are protected by the terms of the deed.

LEASES
Regional Town and Country Planning Act [Chapter 29:12] :Rent Regulations SI
626/82 :Rural Land Act [Chapter 20:18] :Stamp Duties Act [Chapter 23:09]

Essentials of a valid lease

In order to create a valid lease there must be two parties. It is not possible for an owner of
property to lease the property to himself. The subject matter of the lease must be certain and
the lessor must agree to part with possession of the property to the lessee.

The rent must be fixed or ascertainable by independent means and must be paid in money or
fruits.

Registration of leases
Section 65 of the D R Act provides for registration of leases

(1) Save where provision to the contrary is made in any enactment, any lease or sub-lease of
land and any

cession of such a lease or sub-lease intended or required to be registered in a deeds registry

shall be executed by notarial deed by the lessor and the lessee or by the lessee and the sub-
lessee or by the cedent and the cessionary, as the case may be.

(2) If the land leased or sub-leased is mortgaged or subject to the rights of anyother person, it
shall be necessary for the purposes of registration of the lease or sub-lease or any cession
thereof to produce the consent of the Legal holder thereof.

The parties’ common law obligations

A sound knowledge of the parties’ common law obligations is essential to the drawing of
good leases. The lessor’s common law obligations are as follows.

Lessor’s common law obligations

The lessor must deliver the property to the lessee and guarantee that the lessee will have quiet
enjoyment. If the lessee’s occupation is disturbed, whether due to the lessor’s default or some
external cause, the lessee is entitled to a remission of the rent.

The lessor must maintain the property and guarantee it against defects. Usually a lease
provides that the lessor will be responsible for structural maintenance but that the lessee will
be responsible for all other maintenance. To this end the lessee usually acknowledges at the
commencement of a lease that the property is in good order. Any damage on termination of
the lease can thus be attributed to the actions of the lessee.

The lessor must pay rates and taxes and other similar outgoings on the property. It is usual in
leases to provide that the lessee will be responsible for electricity, water and telephone
charges.

Lessee’s common law obligations

The lessee’s must pay the rent and take proper care of the property. He must use the property
for the purposes let and return it to the lessor in a proper state of repair. The breach of any of
these obligations would entitle the lessor to cancel the lease and to claim damages.

Additional important clauses

There are a number of important other clauses which should be considered when drawing
leases.

Duration

Under common law the parties may agree that the lease continues for a fixed period or is
periodic. This means that it continues from period to period such as month to month until
terminated by reasonable notice. If there is no agreement as to the period, the lease is a
periodic one, the period being determined by the dates on which rent is due.

Renewal

Renewal of the lease is usually provided by way of an option to renew.

Deposit

Leases frequently provide for the payment of a deposit. The purpose of this is to protect the
lessor if the lessee should leave the property in a poor state of repair. The lessor may use the
deposit to pay the cost of making good the property. The lessor must return the deposit to the
tenant if no damage has been caused. In times of high interest rates, it should be expressly
stated that no interest will be paid on the deposit.

Use of the premises

It is usual to restrict the use of the premises. The reason is that the lessor wishes toavoid
possible damage being caused by an inappropriate use. In residential leases it is sometimes
provided that the number of persons who may live on the property is limited.

Alteration of the premises

It is extremely important to a lessor that the lessee does not alter the premises. In residential
leases any alterations are generally prohibited. They may be allowed in rural or commercial
leases but provision for removal on termination should be made.
It may also be necessary to deal with the payment of compensation if the alteration is not
removed.

Inspection of the premises

Leases usually provide that a lessor may inspect the premises to satisfy himself that the lessee
is caring for it properly.

Termination

A lease is terminated in the following circumstances.

1. byeffluxion of time.

2. by notice.

Under this point see Parkview Properties (Pvt) Ltd v Chimbwanda1998 (1) ZLR 408
(H) court decided on notice terminating contract of lease — time within which notice must
be received — eviction of tenant — “good and sufficient grounds for” — held that court
required to exercise value judgment — dominant purpose not to let to persons other than
present tenant — eviction lawful

3. by complete destruction of the property.

4. by mutual agreement of the parties.

5. by repudiation by either party of the lease.

In Omarshah v Karasa1996 (1) ZLR 584 (H)the court discussed whether landlord may
terminate lease because he requires premises for his own use.

It is essential to include a comprehensive termination clause in any lease agreement.

Ejectment
In Lincoln Court (Pvt) Ltd v Zimbabwe DistanceCorrespondence Education College
(Pvt) Ltd 1990 (1) ZLR 158 (HC) court dealt with ejectment of statutory tenant,particularly
what constitutedgood and sufficient cause— interests of lessee relevant to date ejectment

Damages for holding over and costs

In order to avoid disputes on termination due to the lessee’s breach it is usual to provide that
after cancellation of the lease any amount paid will be treated as damages for holding over.

The lessee may also be made liable for the lessor’s legal costs incurred as a result of the
breach including sales tax on services, legal practitioner/client costs and collection
commission.
Long leases
Any lease of 10 years or for periods including renewal which total 10 years is a long lease. In
order to be effective against the world a long lease must be notarially executed and recorded
in the deeds office.

If a long lease is for a period of 25 years, transfer duty is payable on the value of the lease.
[See Part V section 19 of the Stamp Duties Act [Chapter 23:09].]

Huurgaatvoorkoop

The huurgaatvoorkoop rule provides that if a lessee is in occupation and the propertyis sold,
the new owner is bound by the terms of the lease. Even if the lessee is not in occupation, an
owner who knows of the lease is bound by it

Sub-letting and assignment

Sub-letting is a grant by a lessee of the whole or a portion of his rights under the lease to
another person (the sub-lessee) for rent. A new contract is created between the lessee and the
sub-lessee but at the same time the contract between the lessor and the lessee continues.

An assignment is a transfer by the lessee to a third person of all his rights andobligations
under the lease so that the third person takes his place in the original agreement between the
lessor and the lessee. The consent of the lessor is thus necessary.

A lessor is anxious not to allow sub-letting and assignment and this is usuallyprohibited in a
lease agreement.

Landlord’s hypothec

As soon as the rent is in arrears the lessor obtains a lien or tacit hypothec over the property of
the lessee, any sub-lessee or goods of third persons who knowingly brought them onto the
leased premises. The lien is for the rent owed to the lessor.

RESIDENTIAL LEASE AGREEMENTS

Residential lease agreements may be for houses or flats and the details of the lease will
depend on which type of property is being leased.

Rent Regulations SI 626/82

In drawing leases for residential properties, it is essential to have a good knowledge of the
Rent Regulations. The regulations apply to most leases of dwellings except where the
property is owned by the State or a statutory authority or for a lease of not more than 6
months during the absence of the lessor.

The regulations provide for the control of rent and the various rent boards are given the
power to determine a fair rental. Reference should be made to Part II of the regulations.

In terms of the regulations, the maximum deposit which may be taken from a lessee is an
amount equal to one month’s rent [section 27(1) (b)].
The regulations also provide for restrictions on the eviction of tenants. No order for eviction
may be obtained where the lessee is paying rent within 7 days of due date and complies with
the terms of the lease unless:

1. the lessee is doing or is likely to do material damage to the dwelling or his behaviour
will cause substantial inconvenience to neighbours; or

2. The lessor has given two month’s written notice that the dwelling is required for his
occupation or that of his parent, child or employee; or

3. The lessor has given two month’s written notice that the dwelling is required
forreconstruction or rebuilding.

It is not permissible to refuse to lease a dwelling on the grounds that a child may reside in it
[section 34].

Rent books or cards must be issued to lessees and included in them shall be the information
listed in the First Schedule, e.g. address of dwelling and parties, rent, etc.

LEASE OF RURAL LAND

In addition to the general comments on leases which have already been made, rural leases are
also affected by the provisions of a number of Acts.

Rural Land Act [Chapter 20:18]

Section 8 of the Rural Land Act provides that rural land may be leased to a singleindividual
or to a corporate body but not to two or more individuals jointly without the written consent
of the Minister to which authority has been delegated.

Section 9 of the Act provides that no owner or occupier of rural land may permit any person
other than an employee to cultivate any portion of the land unless the portion has been clearly
demarcated by permanent cairns, pegs, etc. In addition, the owner or occupier must keep a
register of any such permits and also a register of permits relating to stock belonging to
another person and which he permits to graze on his land.

Regional Town and Country Planning Act [Chapter 29:12]

Section 39 of the Regional Town and Country Planning Act provides that no person may
enter into an agreement for the lease of any portion of any rural property for a period of 10
years or for the lifetime of the lessee without obtaining a permit as provided in section 40 of
the Act.

Land Acquisition Act [Chapter 20:10]

In terms of section 14 of the Land Acquisition Act the owner of any designated land may not
lease his land except with the prior written consent of the Minister of Lands, Agriculture and
Water Development.

Period
The period of the lease in a rural lease is likely to be for at least one growing season and
usually longer. When acting for lessees it is essential to remember that any crops which are
growing at the end of the lease accrue to the owner.

LEASE OF COMMERCIAL PREMISES

Latimer Manley & Associates (Pvt) Ltd vLaverna Investments (Pvt) Ltd 1990 (1) ZLR
200 (HC) dealt with Commercial Premises (Rent) Regulations 1983 s 3 in the interpretation
of “commercial premises”.

Many types of commercial property may be leased. Examples include shops, offices,
factories, warehouses and so on

Commercial Premises (Rent) Regulations SI 676/83

The Commercial Premises (Rent) Regulations apply to the letting of all commercialpremises
save those leased by the State or municipalities.

Part II of the regulations provides that parties may apply to the appropriate rent board for a
determination of a fair rent and this is usually done where the parties are unable to agree on
the rent.

Section 22 limits the power of a lessor to evict a tenant where the lease has expired, either by
the effluxion of time or as a result of notice when the lessee pays the rent and complies with
other conditions of the lease.

However, if the court is satisfied that the lessor has good grounds for an order of eviction
other than that the lessee does not wish to pay a higher rent or the lessor wishes to lease the
premises to some other person it may grant an eviction order [section 22(2)].

Increases in rent

Commercial leases frequently provide for annual increases in rent. The amount of the
increase may be stated or the previous year’s rent may be increased by a percentage.

Fire insurance and damage by fire

The lessor usually undertakes to insure the building against damage by fire and the lessee
undertakes not to do anything to increase the risk.

If the building is damaged by fire, it is usually provided that the lease will terminate if there
is total destruction but that in the case of partial destruction there will be an abatement of the
rent while the building is being repaired.

Fixtures and fittings

As the leased premises are to be used for commercial purposes, the lessee is usually permitted
to install fixtures and fittings though he must remove them on termination of the lease and
make good any damage.
Additional clauses

Butterworths’ Encyclopaedia of Forms and Precedents on letting and hiring have good
examples of various types of leases.

1. Where lift services or air conditioning is suspended there is usually a provision that there
will be no reduction of the rent or claim for loss by the lessee.

2. Particularly in multi-story buildings, there is frequently a provision that no heavy articles

will be permitted on the premises. The reason is to limit possible damage to the building.

3. There may be provisions relating to the supply of water and electricity. In times of
shortages, these become more important.

4. Sometimes, it is expressly stated that the lessee will be responsible for the payment of
telephone charges.

5. Where the lessor wishes to ensure that the appearance of the building is of a high standard,
he may impose conditions relating to the display of the lessee’s name and the need to keep
the premises open during normal business hours. He may also prescribe minimum standards
to be maintained relating to the cleanliness of the [Link]

Eviction
In the case of Delco (Pvt) Ltd v Old Mutual Properties (Pvt) Ltd &Anor 1998 (2)
ZLR 130 (S) eviction provisions under Commercial Premises (Rent) Regulations 1983 — s
22(2) — held lessor to have “good and sufficient” for seeking recovery of premises —
meaning of term.

PART 3 NOTARY NOTES 2022

ANTENUPTIAL CONTRACTS
An antenuptial contract is defined as a written contract execute and attested by a [Link] such a
contract two parties who are by law competent to enter into a marriage or a civil union and who have
the intention to enter into a marriage with each other, regulate the matrimonial property dispensation
of the proposed marriage or union, with the main aim of including the community of property and the
community of profits and losses in the proposed marriage or union.

Given the scope of such contracts it is imperative to discuss the types of marriages in Zimbabwe.

TYPES OF MARRIAGE IN ZIMBABWE

 Monogamous marriage under the Marriage Act Chapter 5: 11

 Potentially polygnous marriage under the Customary Marriages Act Chapter 5: 07
 Unregistered customary law union

MARRIAGE ACT
 All Zimbabweans competent to marry under this marriage.
 Governed by General Law. Proprietary consequences for Africans used to be
governed by customary law by virtue of section 13 of the Customary marriages act
which has since been repealed by Act 6/97

MARRIAGES ACT

 Marriage can only be between Africans - see definition section

 Governed by customary law unless there are compelling reasons to the contrary
 Potentially polygynous marriage

UNREGISTERED CUSTOMARY LAW UNION

 Invalid marriage except for certain limited purposes. Meets all requirements of an
African marriage except registration - Section 3 ( 1 ) of the customary marriages act
 Valid for the purposes of guardianship, status of children, custody, inheritance under
customary law - Section 3 (5) Customary marriages act. Children born under this
union enjoy the same rights as children born under registered customary law
marriage. For purposes of customary law such children presumed to be legitimate and
falling under the guardianship of their father.

It would appear that immovable property rights of spouses married under customary law
would be determined as if no marriage took place. Not competent to enter into an ante nuptial
contract since marriage potentially polygynous.

Up to 1929, proprietary consequences governed by Roman Dutch law principles which

stated that all marriages were automatically in community of property unless parties at the
time of the marriage entered into an ante nuptial contract providing that the marriage was out
of community of property.

Position was reversed in 1929 by the Married Persons property Act of 1929 which
provided that all marriages are automatically out of community of property unless parties
enter into an ante nuptial contract creating community of property.( CONTRAST WITH THE
SA POTION WHICH IS THE OPPOSITE).The South African position presumes all
marriages to be in community.
MARRIAGE OUT OF COMMUNITY OF PROPERTY

 Arises automatically when the spouses are non Africans and there is no ante nuptial
contract
 Seems that now because of the repealing of section 13 of the Customary Marriages
Act, this now applies also to Africans married under general law as far as movable
property is concerned.
 Each spouse retains his /her property that they brought into the marriage and the
property they each acquired during the marriage.
 Wife is not under the control of her husband. She can enter into contracts, sell her
own property, enter into partnerships and go to court without her husband's help.
 At dissolution of marriage by death or divorce, each spouse retains his or her own
property and court has no power to interfere and alter or adjust the property rights of
spouse using the fairness or equity and justice principle
 An imprudent spouse is prevented from ruining his/her spouse because there is no
community of debts. In reality however most spouses merge their property and
allocate each other responsibilities in running the household. One spouse may be
allocated the responsibility of buying durable goods for example so that it becomes a
legal fiction at the end of the day for each to walk away with what they brought into
the marriage.
 Some wives stay at home and take care of the family. This role is then considered
unimportant in the out of community realm because their domestic contribution is not
taken into account. There is therefore no equity there.

Matrimonial property rights of spouses are governed by the law of the country where husband
is domiciled at the time of marriage except in cases where there is an ante nuptial contract.

The antenuptial contract has to be registered in the Deeds office to be enforceable against
third [Link] CONTRACTS ACT [CHAPTER5:01]

S 3 No antenuptial contract valid unless registered and copies filed in Deeds Registry

(1) No antenuptial contract executed after the 10th June, 1891, shall be valid as against
any creditor of either of the spouses unless the same is registered in the Deeds
Registry in conformity with established law and custom and unless a signed original
of the contract for filing in the Deeds Registry as the registry duplicate together with
two further originals or grosses or copies thereof certified by a notary public are
lodged with the Registrar of Deeds.

For an antenuptial contract to be valid it must be prepared by a notary public See s6

S6; No contract except notarial contracts to be registered unless executed beyond

Zimbabwe
(1) No antenuptial contract executed in Zimbabwe shall be capable of being registered
in Zimbabwe unless ithad been executed before a notary public.
MINING CONTRACTS AND
NOTARIAL HYPOTHECATIONS
Legislation
Deeds Registries Act[Chapter 20:05]Mines And Minerals Act[Chapter 21:05]

MINING CONTRACTS
Elliot, in his book South African Notary defines a mining contract as a notarial deed
whereby the holder of a mining title over base metals, precious metals or natural oil grants
rights to another party over that title.

The Mines and Minerals Actdefines a mineral as “any substance occurring naturally in or
on the earth, which has been formed by or subject to a geological process”. Mining is the
process of extracting of those substances from the earth. A mining contract is thus at first
glance an agreement entered into by parties in relation to the extraction of substances
naturally in or on the earth that have been formed by or subject to geological processes.

There is however an important distinction between mining contracts and ordinary commercial
contracts which is of great significance to the notary public. This difference is that most
mining contracts are required to be prepared by a notary public,as appears from Elliot’s
definition above.

In Zimbabwe, the issue of the agreement being notarially executed is a statutory requirement
for the registration of a mining contract by the Mining Commissioner in terms of the Mines
and Minerals Act. A good example of this requirement is found in S275 of the Act which
states that for any application for registration of transfer of a mining location by the Mining
Commissioner must be accompanied by “a duplicate original, grosse or notarially certified
copy of any and every existing agreement affecting or bearing upon the sale, alienation,
exchange or transfer”S275(6) c. The absence of these notarially executed documents is fatal
to any application forthe registration of a right over a mining location or the subsequent
transfer in full or in part of those rights. Contracts not notarially executed would fall into the
category of underhand documents and only create personal rights between the parties.

Mining contracts are concerned with rights over mining locations, which are defined in the
Mines and Minerals Act as “a definved area of ground in respect to which mining rights or
rights in connection with mining have been acquired under this Act or were acquired under
any previous law relating to mines and minerals” S5. Various types of mining contracts exist,
the most common being prospecting contracts, mining leases, options and tribute agreements.
OPTIONS AND TRIBUTE AGREEMENTS RELATING TO MINING LOCATIONS
An option is an offer to sell which remains open during a stipulated period and if it accepted
at any time before the expiration of that period a binding contract comes into existence
between the parties see VanPlasten V Henning 1913AD 82 at [Link] case and subsequent
case law have established the position that an option is a separate contract between the option
grantor and the option holder to keep the option contract open for a particular time interval in
which it must be accepted.. In Hersch v Nel1947(3)SA 695 , the court stated that an option is an
agreement between the giver and the holder of the option by which the giver has bound himself to sell
a certain thing to the holder at the option if the holder should require him to do so within the time
fixed by the option. The giver grants and the holder acquires the right to buy.

In the realm of mining, options are most prevalent in prospecting contracts. Prospecting refers to the
searching of an area for mineral deposits which are then analysed to determine whether sufficient
quantities are present to warrant mining operations and the most appropriate method of extraction. A
prospecting contract would thus be a contract whereby one party grants another the right to search for
and analyse mineral samples in an area over which the former has mining title.

In these prospecting contracts, the options that can be included are;

An option to purchase the land including any of the mineral rights;

An option to acquire the minerals;

An option to obtain lease of the mineral rights

As a mining option is a mining contract, the requirement of registration that applies to mining
contracts generally is applicable. Notarially executed options are registerable with the Registrar of
Deeds in terms of s56 of the Deeds Registries Act. Prospecting contracts in which option contracts
are present can also be registered. This is in terms of s278 of the Mines and Minerals Act. Where an
option has been registered in relation to a mining location, such registration precludes any transfer or
abandonment of the mining location as a whole or part thereof,seeS279 Mines and minerals Act.

Aside from this, the general rules of contract governing option contracts apply. It must be clear in its
language and be a complete contract in itself.

Tribute Agreements
The Mines And Minerals Act defines a tribute agreement as “any agreement or arrangement entered
into after the 1st July, 1947, whereunder any person has given a tribute, licence, concession, authority
or other right to mine a mining location to a tributor, and includes any such agreement or arrangement
which was entered into before the 1st July, 1947, and which is renewed after such date, and any
agreement to alter the terms of a tribute agreement which has been approved by the Board(Mining
Affairs Board) and any agreement to alter the terms of a tribute agreement which has been approved
by the Board and any renewal of a tribute which has been approved by the Board. S 283 Mines and
Minerals Act”

This is in addition to what is provided for in s280 which describes a tribute agreement as an
agreement where a “holder of a registered mining location has agreed in writing to grant a tribute or
any other limited right to work such mining location to any other person”.S280 Mines and minerals
Act.
What this means is that a tribute agreement is a contract whereby the owner of land over which
certain mineral rights are vested grants another person the right to enter upon his land to prospect,
mine and remove minerals from the land for his own benefit. This right is granted for a limited period
in return for a consideration to the owner of the rights. This consideration can be in the form of a lump
sum or periodical payments or commission based on output . See [Link]
[Link]

In Durma (Private) Limited v Siziba1996 (2) ZLR 636 Ebrahim J noted that the statutory definition
of a tribute agreement does little to elucidate the nature of a tribute agreement and it becomes
necessary to look at common law. The court in this case made a number of findings on the nature of a
tribute agreement:

In a tribute agreement mineral rights are let by one party(the grantor) to another(the tributor);

It is not a lease of land or minerals, but of the incorporeal right to win minerals from the ground;

A condition is attached to the agreement that the tributor pays a certain proportion of proceeds to the
mine owner.

Tribute agreements are contracts sui generis, not being contracts of sale or contracts of hire(leases) at
common law, though the principles applied in relation to them are not very different from those
applied in more traditional contracts.

The tributor is given the right to mine the land and win from it as much of the minerals sought as he
can during the period of the tribute and to dispose of the minerals so won for his own profit.

Tribute agreements do not have to be notarially executed unless they are to be registered. This
requirement of notarial execution is found in s280 of the Mines and Minerals Act which deals with
registration of tribute agreements.

Mining hypothecations
Mining hypothecations are mortgage bonds over mining claims and are registered in terms of
section 259 of the Mines and Minerals Act. They are effected by applying to the Mining
Commissioner for hypothecation of an interest in a mining location. The application must be
accompanied by Notarially certified copies of the agreement giving rise to the hypothecation.

The Secretary for Mines is obliged to keep a register of hypothecations setting out details of
the parties, the mining location, the amount due and any interest payable. The effect of a
hypothecation is that it is a bar to transfer or abandonment of the mining location. However,
it is not a bar to execution or to transfer of the mining location on insolvency.
BILLS OF EXCHANGE AND
PROMISSORY NOTES
Types of Instruments

Constituted from theBills of Exchange ActChapter 14. 02

Promissory Note

Promissory note – This is defined by section 89 as “ an unconditional promise in writing

made by one person to another, signed by the maker, engaging to pay on demand or at a fixed
or determinable future time a sum certain in money to or to the order of a specified person or
to bearer.”

An instrument that fails to comply with this definition will not be a promissory note and not
be negotiable free of equities – it may however be seen as evidence of a contract.

In terms of S 89(2) of the Act, a valid note must be indorsed by the maker.
A promissory note remains incomplete until delivery to the payee \ bearer is effected-S 90

Basic Characteristics of a Promissory Note

(i) An unconditional promise
The promise must be unconditional. A distinction must be drawn between a
promise to pay that is conditional upon the performance of an act by the promise,
which is given in consideration of the performance of such an act

(ii) In writing
It is in writing. Important because at the time the promissory note was made there
must have been words spoken between the parties no evidence can be given to
those words where there is a promise in writing

(iii) Signature made by the make

It must be signed by the maker, will be equally binding if its done by his agent

(iv) Intention to pay money

It must be a promise to pay a sum certain in money. The sum payable will be
regarded as sufficiently certain although it is required to be paid with interest or
by stated instalments with or without a provision that upon default in payment of
any instalment the whole shall become due. Where the sum payable is in words
 and figures the words prevail in the event of a discrepancy. The inclusion in a
note a pledge, collateral or security with the authority to sell it is permissible

(v) There should be demand

It must be payable on demand or a determinable future time

(vi) Promise made to a specified person \ bearer.

It must be made by one person to another. If there is more than one maker liability
must not be expressed as being alternative or in succession otherwise the
instrument isn’t a note. Reason is that the promise to pay is conditional upon non
payment the other maker or makers. Payment may be promised to more than one
payee. Payee is described as the bearer, this must be done with clarity.

Whenever a Promissory Note is payable on demand and has been endorsed, it must be
presented for payment within a reasonable time of endorsement otherwise the endorser is
discharged (see – sec 90)

NB – Section 90(2) – Test for Reasonable time

- .In terms of sec – 94 the makerof a Promissory note is liable in two respects.
(a) He engages that he will pay it according to its tenor.
(b) The maker is precluded from denying to a holder in due course the existence of the
payee and his then capacity to endorse.
Application for rectification of a promissory note
Rosenfeld v Teakland Sawmills (Pvt) Ltd 1962 R & N 456

Bill of Exchange

Sec 3 (1) a bill of exchange is defined as an unconditional order in writing addressed by one
person to another, signed by the person giving it, requiring the person to whom its addressed
to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to
the order of a specified person or to the bearer.

It differs from a promissory note in that it is not a promise but an order. An imperative order
is required and same essentials as promissory notes. The requirement that the order must be
addressed by one person to another doesn’t prevent the drawer from being the payee to pay
himself but if the drawer and drawee are the same person the holder may treat it either as a
promissory note or a bill of exchange. The main difference between the two is mainly due to
the position of the drawer and drawee of a bill of exchange.

A bill is invalid by reason :

(a) that it is not dated

(b) that it doesn’t specify the value given. See – sec 3(4)

A good example of a bill of exchange is a cheque According to Section 72 a cheque is

defined as a bill of exchange drawn on a banker payable on demand. It is necessary to
distinguish a cheque from the other bills of exchange because it gives special recognition to
the banker who makes it his business to deal in bills, which are to be paid on demand. A
chequebook is issued to a holder of a current account, who deposits money into the bank and
the bank holds the money on behalf of the customer and pays bills on presentation of
cheques. The duty of the banker is to pay his customer’s cheques but not those that drawn
irregularly. The banker is expected to know the signatures of the customers and bankers who
in good faith and in the ordinary course of business honours a cheque which unknown to him
was forged is regarded as having paid it in due course. Look at sec 75.

Differences between bills of exchange and promissory notes are:

PROMISORY NOTE BILL OF EXCHANGE

1. It is a promise to pay. It is an order to pay.

2. There are only two parties, the There are three parties, the drawer,
drawer and the payee. the drawee and the payee.
3. There is no necessity for It must be accepted.
acceptance.
4. The maker is primarily liable. The drawer is not primarily liable.
5. It is never drawn in sets. A bill of exchange can be drawn in
sets eg Foreign bills are specially
drawn in sets.
6. Protesting is not necessary after A foreign bill must be protested
dishonour. after dishonour.
7. Noting of dishonour not Notice necessary.
necessary.
8. A promissory note cannot be A bill of exchange can be so drawn
made payable to bearer. provided it is not payable to bearer
on demand.
9. In a promissory note the maker In a bill of exchange the drawer and
cannot pay to himself. the payee may be one person.

Bills and notes are commercial paper and play an important role and, in some respects,
essential role in commercial transactions. They are instruments of payment, credit and
investment

NOTING AND PROTESTING

Noting is whereby the holder of an instrument upon its dishonour by non acceptance or non
payment can cause such dishonour to be noted or recorded by a notary public on the face of
the instrument or on a noting slip (a paper attached to the bill for such purpose). The notary
public does this by making a note on the noting slip of his initials, date and place for noting,
his charges and the reasons for the noting. For the procedure to be valid, notice of dishonour
must be given to the drawer or endorser because if it is not done liability on the instrument
would be discharged. In other words, noting is the making of a minute of the circumstances
of dishonour within the prescribed time limit. The holder after dishonour would take the
instrument to a notary public who would also present it for acceptance or payment to the
drawee or endorser. Where the instrument is again dishonoured, the notary public would then
make a noting on it.

On the other hand, protesting is a formal statement in writing made by a notary public under
his hand and official seal at the place of dishonour stating that the referred instrument was
presented to the drawer or endorser but was dishonoured by either non acceptance or non
payment. Tenant’s Notary Manual defines a protest as a formal declaration in writing made
by a notary public at the request of the holder that the instrument has been refused acceptance
or payment and that the holder intends to recover all expenses to which he may be put in
consequence thereof. A protest is a certificate made by the notary public after being presented
with a dishonoured instrument which provides formal proof of the fact and circumstances of
dishonour

The procedures of noting and protesting are a result of dishonour of a negotiable instrument.
An instrument is dishonoured by non acceptance or non payment upon presentment to the
drawee or endorser. Presentment is a pre condition to the liability of a drawee or endorser
which then leads to noting and protest. An instrument is said to be dishonoured by non
payment when it is duly presented for payment and such payment is refused or non
obtainable whereas non acceptance is whereby the drawee or endorser refuses to accept or
acknowledge the instrument. When this happens, the holder then acquires the right of
recourse against the drawer or endorser. To render this right effective, the holder is required
to perform certain statutory duties which are noting and protesting. These are procedures by
which a notary public provides formal evidence of the dishonour of a negotiable instrument.

There are basically two reasons for the noting procedure to be done. Firstly, it is to secure
liability of the drawer or endorser on the instrument. It is a condition stated in s47 of the Bills
of Exchange Act [Chapter 14:02] that failure to give notice of dishonour would discharge the
drawer or endorser from liability on the instrument. Secondly, it is to alert prior parties to the
instrument so that they can take nece4ssary steps pursuant to their rights of recourse against
parties prior to them. Noting must be done within a reasonable time after the dishonour but it
must not be noted not later than the next succeeding business day 7. For the notice to be valid,

7
it must satisfy the requirements laid down in s48 of the Act. Notice may be dispensed with
where there is waiver or where it is reasonable impossible for it to be given See S49(2) of the
Act

A protest must be effected at the place of dishonour not later than the next business day after
the day on which it was dishonoured. It is a procedure which is done to prevent the release
fromliability of the drawer or endorser. All the other requirements for validity applicable to
the notice apply mutatis mutandis to a protest. Thus it was held in the case of Factory
Investments (Pty) Ltd v Record Industries Ltd8 that waiver of notice of dishonour not only
dispenses with the necessity for such notice to bind the endorser but also to dispenses with
the necessity for protest to bind such endorser. When bringing an action upon a dishonoured
instrument, proof of noting and protest will be sufficient evidence against the drawer or
endorser. Usually, it is mandatory for foreign bills to be protested but it is not considered
absolutely necessary for inland bills to be protested in order to sustain an action.