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Notarial Practice Module Overview 2024

The Notarial Practice module for the 2024 Professional (Conversion) Examinations focuses on the role and responsibilities of notaries public, including the preparation and attestation of legal documents. Candidates will learn about various notarial documents, regulations governing their execution, and the procedures for registration. The module includes tutorials, assessments, and a three-hour examination to ensure candidates demonstrate proficiency in notarial duties.

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Clayton Mutseneki
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71 views8 pages

Notarial Practice Module Overview 2024

The Notarial Practice module for the 2024 Professional (Conversion) Examinations focuses on the role and responsibilities of notaries public, including the preparation and attestation of legal documents. Candidates will learn about various notarial documents, regulations governing their execution, and the procedures for registration. The module includes tutorials, assessments, and a three-hour examination to ensure candidates demonstrate proficiency in notarial duties.

Uploaded by

Clayton Mutseneki
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

CLE - 2024 Notarial Practice

COUNCIL FOR LEGAL EDUCATION

PROFESSIONAL (CONVERSION) EXAMINATIONS

NB. This course outline provides a general guide on the minimum body of
knowledge and does not take away the expectation for candidates to read and
adequately prepare for the examination.

NOTARIAL PRACTICE

MODULE OUTLINE

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CLE - 2024 Notarial Practice

2024

A. ABOUT THIS MODULE

This module focuses on the office of the notary public. It is important to know who

exactly a notary public is and the powers conferred to him or her by that office.

This is a module undertaken by registered legal practitioners who are also in private

practice, this is a prerequisite for one to be admitted as a notary public.

A Notary Public also referred to as a Notary, is an admitted Legal Practitioner who

has acquired specialised expertise and written a specific notarial practice exam.

They have statutory and common law powers to prepare and attest certain

specialized legal documents, administer oaths, and perform other wide-ranging

administrative functions of a national and international nature.

This module is designed to familiarize candidates with the pertinent aspects of


notarial practice including:

The Notarial Office; distinction between Notarial Deed and underhand agreement;

advantages of Notarial Documents; Protocol Minutes and Copies; Grosse;


Professional Conduct; use of the Seal; authentication of documents; functions of

Commissioners of Oaths.

Ante-Nuptial Contracts; Donations; Trusts and Settlements; Constitutions of

Voluntary Associations; Notarial Bonds and Notarial Deeds of Cession of Book Debts,

general principles, legal exceptions; Covering Bonds; Surety and Indemnity Bonds;

Collateral Notarial Bonds; Notarial Debenture Bonds; Dealings with Notarial Bonds;

Servitudes - general principles; praedial servitudes, personal servitudes; Leases;

Powers of Attorney; Notarial Deeds of Separation between husband and wife;

Assignments; Execution and Drafting of Wills; Bills of Exchange and Promissory

Notes, Noting and Protesting;` Notarial Deeds of Change of Name; Deeds creating

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CLE - 2024 Notarial Practice

undivided shares of Sectional Title; Mining contracts, Notarial Hypothecations,

Options and Tribute Agreements relating to mining locations;

Drafting of all above Notarial Documents; Practice and Procedures relating to

Execution and Registrations of Notarial Documents; Provisions of Deeds Registries

Act and Regulations, Stamp Duties Act, and other legislation and laws affecting

Notarial documents and practice; Stamp duties and official registration fees.

B. AIM AND OBJECTIVES

After competition of this module, candidates should demonstrate a solid


appreciation of understand the following:

 The duties and obligations of the office of the notary public


 Different types of documents to be prepared by a notary public.
 The regulations governing the preparation, execution, and lodging of
notarial documents.
 The procedures and formalities for registering notarial documents in the
Deeds Office.

C. EXPECTED OUTCOMES

At the end of this module, candidates must demonstrate the following abilities:

 Execute, following due process, their notarial duties from the preparation,
execution, and lodging of notarial documents.

 Drafting of the following notarial documents:

 Power of attorney -Notarial Deed of Change of Name


 Notarial Deed of Donation.
 Notarial Deed of Trust.
 Wills -Notarial Bonds.
 Notarial Deed of Sale.
 Deed of Servitude.
 Ante-nuptial Contracts.

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CLE - 2024 Notarial Practice

D. EXAMINATION

There will be a three (3) hours examination at the end of this module. The venue,
dates, and any other details will be announced to candidates.

E. TUTORIALS

 Methodology
There may be weekend lessons which will be conveyed through THREE face-to-face
tutorials using the teacher-centered approach. Learners will be expected to fully
participate in these tutorials to enable a lively learning environment. Group work
will also be used as a method of learning. Participants will also be expected to
research before tutorials to avoid a spoon-feed type of lesson considering that
learners are already degree holders.
One Assignment and one mock Examination will be given as a form of assessment
before the final exam.

 Evaluation
At the end of all tutorials, an evaluation will be made. Participants will be given
evaluation forms which they will be encouraged to complete as truthfully as
possible. The evaluation will mostly be for the content of the tutorial, the way the
tutor delivered, and recommendations for future tutorials.

F. MODULE CONTENT

1. The Notarial Office

a) Duties and functions of a Notary Public.


b) Documents which must be drafted by notaries.

2. Code of Conduct for Notaries


a) Diligence.
b) Conflict of Interest.
c) Confidentiality.
d) Statutory Misconduct.

3. Notarial Deed
a) Notarial documents.
b) Protocol, minute, grosse.
c) Authentication of documents.
d) Administration of Oaths.

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CLE - 2024 Notarial Practice

4. Deeds Registries Regulations 236/18

5. Power of Attorney
a) What is contained in Special Power of Attorney?
b) Termination of Power of Attorney.

6. Commissioner of Oaths
a) Duties and rights of Commissioner of Oaths.
b) Difference between Commissioner of Oaths and Notary Public.

7. Servitudes
a. Praedal servitudes.
b. Personal Servitudes.
c. Distinction between Personal and Praedal Servitudes.
d. Registration process of a servitude.

8. Deed of Change of Name


a. Common Law.
b. Change of name.
c. Statutory provisions.
d. How to change a surname.

9. Donations

a) Donations inter vivos.


b) Donations mortis causa.
c) Draft a Deed of Donation.

10. Constitutions of Voluntary Associations

 Voluntary Associations.

11. Assignments and Cessions

12. Trusts

a) Types of Trusts.
b) Essentials of a Trust.
c) Advantages of Trusts.

13. Ante-Nuptial Contracts

a) Types of Marriages in Zimbabwe.


b) Marriage out of community of property.
c) Unregistered customary law marriages.
d) Marriages Act [Chapter 5:17] (No. 1 of 2022).

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CLE - 2024 Notarial Practice

14. Wills
a) Formalities.
b) Essential of a will.

15. Notarial Bonds


a) Distinction with Mortgage Bonds.
b) Categories of Notarial.
c) Surety and indemnity Bonds.
d) Essential clauses of Notarial Bonds.

16. Mining Contracts


a) Options and Tribute agreements relating to mining locations.
b) Mining hypothecations.

17. Leases
a) Essentials of a valid lease.
b) Registration of leases.
c) Common law obligations and clauses of a lease.
d) Residential leases.
e) Commercial leases.
f) Rural land leases.

18. Bills of Exchange


a) Promissory notes characteristics.
b) Bills of exchange characteristics.
c) Noting and protesting.

19. Notarial Deed with an executive right of occupation


 Formalities for Registration.

20. Movable securities registry


a. The advantages and disadvantages of it.
b. The process of registration.

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CLE - 2024 Notarial Practice

G. READINGS
Legislation and Regulations
 Deeds Registries Act [ Chapter 20:05]
 Deeds Registries Regulations SI 236/ 2018.
 Justice of Peace and Commissioner of Oaths Act (Chapter 7:09).
 Ex Officio Commissioner of Oaths, Designation Notice SI1648/83
 Justice of Peace and Commissioners of Oaths RGN 1205/75
 Private Voluntary Organisations Act (Chapter 17:05).
 Antenuptial Contracts Act (Chapter 5:01).
 Wills Act Chapter 6:06 Mines and Minerals Act (Chapter 21:05).
 Regional Town and Country Planning Act (Chapter 29:12).
 Rent Regulations SI 32/07.
 Land Acquisition Act (Chapter 20:10).
 Stamp Duty Act (Chapter 23:09).
 Commercial Premises Rent Regulations.
 Commercial Premises Lease Control Act (Chapter 14:04).
 Movable Property Security Interest Act (Chapter 14:35)
 General Laws Amendment Act (Chapter 8.0.7).
 Marriages Act [Chapter 5:17] (No. 1 of 2022).

Case Law
 Johnson v Estate Le Grange 1908 SC 823.
 Honey & Blackenberg v Law Society 1965 ZLR 685 (a) @ 691.
 Hayes v the Bar Council 1981ZLR 183 A @ 199-200.
 Law Society of the Cape of Good Hope v Berrage 2005 SA 160C.
 Law Society v Luyt 1929 CPD 281.
 Incorporated Law Society v Van Wyk 1910 CPD 254.
 Hague Convention (abolishing the requirements for legalisation of
documents (1961).
 Lorentz v Melle 1978 (3) SA 1044T.
 Moche v Benford Rest 1939 CPD 135.
 Willoughby’s Consolidated Company v Copthall Stores 1918 AD 1.

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CLE - 2024 Notarial Practice

 Ex -parte Halfieland 1917 CPD 529.


 Malaba v Malaba HB-14-05.
 Taylor v Taylor SC-70-07.
 Mukudu v Mukudu & Ors (HC 7796 of 2015; HH 228 of 2017) [2017] ZWHHC
228 (3 April 2017)
 M V A and Anor 1981 ZLR 306.
 Y v Y 1973 (2) All ER 234.
 Meyes& Others v Rudolf Executors 12918 AD70080.
 Farman v Robertson 1971 (1) SA 115.
 Talas Properties of Rhodesia (Pvt) Limited v Abdullach 1971 (4) SA 369.
 Rolfes, Nebel and Co v Zweigenhaft 1903 TS185.
 De Villiers v James 1996 (2) ZLR 597 (S).
 Jolly v Shannan 1998 (1) 2 ZLR 78 (H).
 Janda v Janda 1995 (1) ZLR 375 (5).
 Lands and Agriculture Bank of Southern Rhodesia v Jameson 1970 (1) ZLR.
 Van Plasten v Henning 1913 AD 82 at page 98.
 Hesh v Nel 1947 (3) SA 695.
 Parkview Properties v Chimbwanda 1998 (1) ZLR 408 (H).

Texts
 Silberburg and Schoeman’s Law of property.
 Mhishi L.M (2005) A Guide to the Law and Practice of Conveyancing in
Zimbabwe, Legal Resources Foundation.
 Jones: Conveyancing in South Africa.
 Brink: Notarial Practice SA Pretoria: UNISA 2007 p146.
 Gibson: Company and Merchantile Law
 The South African Law of Trusts, 3rd Edition.
 Elliot: South African Notary.

… THE END …

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Common questions

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A valid lease under common law requires mutual consent, a specified duration, a definite rental figure, and a clear demarcation of the leased premises, coupled with the lessor's right to enjoy the property. These elements ensure the lease's legality, enforceability, and clarity in practical applications, addressing common lease disputes over terms and property rights .

Mining hypothecations provide a legally structured means of securing loans or investments against mining properties. This enables mining ventures to procure necessary financial resources while ensuring compliance with legal frameworks governing property rights and obligations, thus stimulating development within a regulated environment .

The Commissioner of Oaths primarily attests affidavits and statutory declarations, verifying the oath or affirmation of individuals. In contrast, a Notary Public has broader responsibilities, including drafting, authenticating, and witnessing a wide range of documents, and has additional statutory powers, thus playing a pivotal role in both domestic and international legal processes .

Understanding the distinction between notarial bonds, which secure movable property, and mortgage bonds, which secure immovable property, is critical in property law as it informs the rights, priorities, and enforcement mechanisms available to creditors. This knowledge is essential for framing legal strategies and ensuring compliance with respective legal protections and recovery procedures .

The procedures and formalities for registering notarial documents in the Deeds Office include stringent checks and compliance with statutory requirements, such as proper execution, authentication, and adherence to prescribed protocols. These measures ensure the documents' validity, enforceability, and traceability, thereby safeguarding their integrity and facilitating their legal recognition in both commercial and personal transactions .

A notarial deed is a formal document that is prepared, witnessed, and authenticated by a notary public, giving it a higher evidential value and legal significance compared to an underhand agreement which is a private contract not requiring such formalities or authentication .

Notarial documents, authenticated by a notary public, are universally acknowledged and carry a higher evidential value than standard agreements. They reduce the risk of disputes regarding genuineness and are readily accepted by foreign jurisdictions, facilitating smoother cross-border legal transactions and reliable compliance with international legal standards .

Document authentication by a notary public is crucial in international transactions because it verifies the document's legitimacy and the identities of the parties involved, thus ensuring trust and legal acceptance across jurisdictions where the document will be used. This is vital for preventing fraud and ensuring the reliability of the document in a foreign legal system .

Praedial servitudes involve a relationship between two pieces of land – the dominant and servient tenements – where one land benefits from the burden placed on another. Personal servitudes, however, confer rights to a specific individual rather than being attached to land. This difference affects property rights significantly; praedial servitudes endure with the land, affecting subsequent owners, while personal servitudes terminate upon the death of the individual or after a specified term .

The Marriages Act [Chapter 5:17] (No. 1 of 2022) acknowledges and regulates the drafting and execution of ante-nuptial contracts, allowing couples to determine property rights and responsibilities pre-marriage, thus impacting property relations by facilitating autonomy and clarity in matrimonial property management and division upon dissolution or death .

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