Cap. 55 Art. 40Null and annullable notarial acts.

(1) A notarial act is null:

(a) if it has been received by a notary before his name has appeared in the Gazette in terms of article 5(1);

(b) if it has been received by a notary who has ceased to exercise his functions for any of the causes laid down in article 14, or who has been suspended or incapacitated in any of the cases referred to in article

15(1) and after such cessation, suspension or incapacitation has been published in the Gazette;

(c) if it is undated;

(d) if it has been received in contravention of any of the provisions of article 12(a), (c)(i), (c)(ii), and (d): Provided that if the contravention refers only to one or more parts of the act, only such part or parts shall be null: Provided further that the contravention of article 12(c)(i) or (ii) shall only imply the nullity of the disposition or provision referred to in those subparagraphs;

(e) if the requirements of articles 25(2), (3), (4) and (5), 27, 28(1)(k) and 34 have not been complied with: Provided that where no witnesses are required in terms of article 25(3), nor does the proviso to article 34(1) or any of articles 36, 37, 38 apply, the temporary absence of an appearer during the publication of the act shall not invalidate the act unless, immediately upon his return, he requests the notary to read again what such appearer had not been present for, and the notary refused: Provided further that the omission of signatures in the annexe or list, as required by article 28(1)(k), shall not render the act null but such unsigned annexe or list shall not be deemed to form part of the act except in so far as the truthfulness of its contents results from the act itself or from the list mentioned in the said paragraph (k): Provided further that the omission of the declaration referred to in article 28(1)(k)(ii) shall not render the act null.

(2) A notarial act is annullable:

(a) if it has been received in contravention of any of the provisions of article 12(b), (e), (f), (g), (h), (i) and (j);

(b) if the requirements of articles 36, 37, and 38 have not been complied with;

(c) if the requirements of article 25(6) have not been complied with;

(d) if the notary has not read the act to the appearers, saving the provisions of article 25(6);

(e) if the notary has not explained the act to the appearers;

(f) if the notary has not read and explained the act to the appearers in the presence of the witnesses, when the presence of witnesses is required by article 25(3).

(3) No action shall lie for the declaration of nullity of an act having any of the defects referred to in sub-article (1)(c), (d) and

(e) except on the demand of one of the parties thereto: Provided that where the defect is that mentioned in sub-article (1)(c), the date of the act shall be deemed to be the one referred to in the proviso to sub-article (12).

(4) No action shall lie for the annulment of an act having any of the defects referred to in sub-article (2) except on the demand of a party to the act who proves to have suffered material damage as a consequence of such defect or defects.

(5) Subject to the applicable provisions of this article, no action mentioned in sub-articles (3) and (4) shall lie except within the peremptory terms of ten and five years respectively, such terms to start running from the date of publication of the act or, where the act is enrolled in the Public Registry or an application has been filed in the Land Registry for the first registration of, or the dealing with the immovable which is the subject-matter of the act, from the date of its enrolment in the Public Registry or the application in the Land Registry whichever occurs first.

(6) Without prejudice to the rights already acquired by third parties, an act which is null in terms of sub-article (1) may be rendered valid by a subsequent act and with effect thereof, hereinafter referred to as an "act of validation".

(7) An act which is annullable on account of any of the defects listed in sub-article (2) may, by a subsequent act, hereinafter referred to as an "act of convalidation", have its validity ab initio confirmed.

(8) Where an act of validation is published in terms of sub-article (6), the notary shall annex to such act -

(a) the original defective act with the available documents annexed thereto, if the original defective act is not preserved in the records of the notary who published it, or

(b) an authenticated copy of the defective act including a copy of the available annexed documents if it is so preserved; and, notwithstanding any other law, any duty already paid for the purposes of the Duty on Documents and Transfers Act and any tax already paid for the purposes of the Income Tax Acts regarding the defective act, shall be deemed to have been paid on account or in full settlement of any such duty or tax that may be due on the act of validation.

(9) Where any party to a defective act or his successors in title is unable or unwilling to appear on an act to validate or convalidate as the case may be a defective act, and such party has not yet brought or is not entitled to bring an action in terms of sub-articles

(3) or (4), any other party to the defective act or his successors in title shall have the right to apply to the Court of Revision of Notarial Acts requesting it to order that an act be published validating or convalidating, as the case may be, the defective act under such terms and conditions as the Court may consider appropriate, and that curators be appointed to appear in the name of those parties or their successors in title who fail to appear on such act of validation or convalidation.

(10) The application shall be served on the other parties to the act or their successors in title or their agents.

(11) Where an application has been filed in terms of sub-article

(9) for the validation or convalidation of an act, the right any other party to the act may have hitherto had to bring an action in terms of sub-articles (3) or (4) shall immediately lapse.

(12) Upon being satisfied that the signatures on the defective act are authentic and that the appearers on the act had given their consent thereto, the Court shall order the publication of an act of validation or convalidation, as the case may be, of the defective act: Provided that where the act is defective in terms of sub-article (1)(c), but it has been enrolled in the Public Registry or an application has been filed in the Land Registry for the first registration of, or the dealing with the immovable which is the subject-matter of, the act, the date of the act shall be deemed to be that contained in such note of enrolment or that referred to in such an application.

(13) The notary publishing the act of validation or convalidation ordered in terms of sub-article (12) shall annex to the act the registrar’s declaration that the decision of the Court of Revision has become res judicata.

(14) Saving any other provision of this article and without prejudice to the rights already acquired by third parties, the Minister responsible for notarial affairs may by regulations provide that a notarial act having one or more of the defects mentioned in any of the paragraphs of sub-article (1) and which has been enrolled in the Public Registry or in relation to which an application has been filed in the Land Registry for the first registration of, or the dealing with, the immovable the subject-matter of, the act, and which had been received either by a notary who is no longer alive or by one who has ceased to exercise his functions in terms of article 14, shall be deemed to be valid notwithstanding such defect or defects, and in making such regulations the Minister responsible for notarial affairs may also subject the said validity to such terms and conditions as he may consider appropriate.

(15) Saving any other provision of this article, the Minister responsible for notarial affairs may by regulations provide that no action shall be brought in terms of sub-article (4) to annul a notarial act having one or more of the defects mentioned in sub-article (2) and which had been received either by a notary who is no longer alive or by one who has ceased to exercise his functions in terms of article 14, and in making such regulations the Minister responsible for notarial affairs may also subject the said validity to such terms and conditions as he may consider appropriate.

(16) (a) The applicability of this article to public wills shall be limited to sub-articles (1) and (2) and to the provisions of this sub-article.

(b) A will which is affected by any of the defects mentioned in sub-article (1)(d) and (e) or in any paragraph of sub-article (2) shall not be declared null or be annulled, as the case may be, for the sole reason that any of the formalities required therein has not been complied with if, after the death of the testator, the person having an interest in his succession and who brings an action for the declaration of nullity of the will or its annulment, though aware of the cause of nullity or annullability of the will, either confirmed the will or voluntarily gave execution thereto.

(c) No action shall lie in terms of paragraph (b) unless it is brought within the peremptory term of ten years in case of any of the defects mentioned in sub-article (1)(d) and (e) and five years in the case of any of those mentioned in sub-article (2), and the said terms shall start running from the date of the opening of succession of the testator, unless the will is an unica charta one published before the 1st March 2005, in which case the aforesaid terms shall start running from the date of the opening of succession of the surviving testator.

in 41. In all other cases not provided for in the last preceding article, the notarial act shall not be null or annullable, as the case may be, but the notary who contravenes the provisions of the law shall be liable to the penalties laid down therein.