SPECIAL POWER OF ATTORNEY vs GENERAL POWER OF ATTORNEY & WHY?

The law of agency within the Republic of South Africa allows for a person to be appointed and authorised as an ‘agent’ of another, thereby contractually creating a legal association with third parties when such an agent acts on behalf of the Grantor. 

There are many different instances and circumstances under which agency can lawfully be created and the appointment of a competent person to act on behalf of another, is usually facilitated by way of General or Special Power of Attorney. 

Often, for example, certain parties to a transaction for the sale and purchase of immovable property reside or regularly travel abroad and may not be available or present within South Africa at the time of required signature of the necessary transfer and/or mortgage bond documentation in and during the conveyancing process. A spouse or third party person may then, in such an instance, be appointed as agent for purposes of the signature of all required documentation relating to the transaction, on behalf of the party abroad, and be so appointed in terms of a Special or General Power of Attorney, as it may often be significantly time consuming, costly and/or practically challenging for such a party to comply with all requirements for the signature of legal documentation in a country outside of South Africa, for use within the Republic in terms of Rule 63 of the Supreme Court South Africa's Rules.

A Special Power of Attorney grants the agent the right to sign documentation and act on behalf of another within the Republic of South Africa in respect of a specified transaction only and is therefore limited in this respect. Such a Special Power of Attorney need not be registered in any Deeds Registry, however, the originally signed version thereof will be required for lodgement in the relevant Registry, together with all required transfer documentation in support and corroboration of the authorised signatory in terms thereof. 

A General Power of Attorney, on the other hand, provides much wider authority and fiduciary duty on a Grantee, which may include the authority to sign and act on behalf of the Grantor in and during a property transaction, attendance to banking and financial affairs, collection or payment of debts, appearance in court and/or the institution of litigation on behalf of the Grantor and the like. Such a General Power of Attorney is often registered in the relevant Deeds Registry, in which instance, the same registered General Power of Attorney may be utilised for several different transactions and/or attendances by the Grantee acting as agent on behalf of the Grantor within the Republic of South Africa.

For any Power of Attorney to be valid, this document must clearly indicate the details of the Grantor and the Grantee, must clearly indicate the power of authority granted by the Grantor and must naturally, be duly signed by the Grantor and two competent witnesses. Furthermore, and especially in lieu of the registration of such a Power of Attorney, this document must contain a Preparation Clause which is required to be signed by a Practising Conveyancer, in so doing, accepting responsibility for the correctness of its content. It is therefore advisable to consult with a Conveyancing Attorney for assistance in the correct required conclusion of such a General or Special Power of Attorney prior to the signature thereof.

Bare in mind that any Power of Attorney which is signed abroad, must still be authenticated in accordance with Rule 63 of the Rules of the Supreme Court of South Africa to be regarded as valid and serviceable within the Republic of South Africa.

A Power of Attorney does not remain valid indefinitely, however, shall remain valid until such time as the Grantor revokes it, or in the event that the Grantor loses the ability and legal competency to provide instructions, for instance, if the Grantor is in a coma, admitted to a psychiatric facility or has passed away. In terms of Section 4(1)(a) of the Deeds Registries Act No.47 of 1937, the Registrar of Deeds has the authority to call for proof of agency, although a recent Registrar’s Circular confirms that it is no longer required to lodge an originally signed Special Power of Attorney or, General Power of Attorney which is not instructed to be registered.

For more information or assistance and preparation of your Power of Attorney, contact me at [email protected]

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