1.

“Firstly a notary public ought to be a person of trust and fidelity, secondly a person of
some worth and dignity and thirdly a person well instructed in the business of a Notary”,
[Ayliffe, Parergon, 1726]. Discuss the above statement paying particular regard to a
Notary Public’s functions, ethics, obligations and practices. (15)

i. The court: The Notary shall, as a government officer and public servant, serve all of the
public in an honest, fair and unbiased manner. He 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
ii. 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.

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. See Honey & Blanckenberg v Law 1965 RLR
685 (G) at 691 (1966 (2) SA 43 (R) at 46) (summary). The general common law ethical standards
expected from an ordinary lawyer apply mutatis mutandis to the specialised notary public. Legal
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. See, Hayes v the Bar Council 1981 ZLR 183 (A) at 199–200 (summary)

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 kept confidential, 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.

Section 23 of LP Act Cap 27:07 sets out various forms of unprofessional, dishonourable or unworthy
conduct on the part of legal practitioners.

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.

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.”

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; notarising documents; 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)

Judicial remarks

These are judge made remarks concerning the conduct of notaries. See Law Society v Kuyt where it was
stated that the greatest trust in reposed in the notary public in regard to the almost solemnness of the
documents they prepare. In Johnson v Estate La Grange it was stated that you must be impartial and
should not benefit in any facet or have an interest as a notary.

Knowledge of duties

It is assumed that the notary public has the knowledge of the law in general. That is an advantage of
the notarially prepared documents as well.

Conduct of LPs and notaries

Because of the LPA and Law Society By-laws, the public can report errant LPs and NPs.

Jurisdiction of NP

The whole of Zimbabwe

Carelessness

There is presumption of truthfulness of documents and the solemnities observed. Carelessness is

Language
The NPP is required to use language which he is able to understand and is care and capable of proper
interpretation

Reading and explanation

You should read and explain to the client what it means. Resist clients who insist on just signing

Blanks

Do not leave blank spaces, they should be ruled through. It is serious misconduct to have those.

Witnesses.

Make sure that the witnesses are present and are competent. What is a competent witness.

the significance of the office of the NP which arise from the advantages of the office are

A person who has been admitted has a NP is such a fit and proper person and has the required
knowledge. The person remains under the control and discipline of the courts. There is tradition of
honesty and reliability attached to the office which is upheld worldwide. The NP who does not use
reasonable skill or draws an illegal document can be held liable for damages. There is a presumption of
truth and proper solemnities.

The original act is the minute, signed by the NP and parties and kept in a protocol.