Witness: What does this word mean?

A witness in the context of written documents is a natural person who is physically present when a party signs an agreement to confirm that he/she saw that party sign the document. A competent witness is commonly defined as a person of at least 14 years of age and competent to give evidence in a court of law. This means that he/she should be of sound mind and should not have a personal interest in the agreement being witnessed. An example of an incompetent witness would be someone who is intoxicated.

What are the legal consequences?

Most agreements don’t require a witness in order to be valid and enforceable. However, there are certain exceptions, namely:

• If the parties have previously entered into an agreement that requires any amendments to be signed by the parties and witnessed, then the agreement requirements must be met;
• Section 2(1)(a)(ii) of the Wills Act 7 of 1953 requires the testator to sign his/her will in the presence of two or more competent witnesses;
• Section 95 of the Deeds Registries Act 47 of 1937 requires any power of attorney purporting to give authority to deal with a deed capable of registration in the Deeds Registry to be attested by either two competent witnesses or a magistrate, justice of the peace, commissioner of oaths or notary public;
• Section 15 of the Matrimonial Property Act 88 of 1984 requires the consent of a spouse married in community of property to be obtained and for such consent to be attested by two competent witnesses in certain circumstances.

Our tips:

For evidentiary purposes we recommend that agreements be witnessed, even if there is no legal requirement for this.
If the sole purpose of a witness is to provide evidence at a later date that the agreement was signed by the parties, it is imperative that you are able to easily identify and locate such witness. For this reason it is recommended that the witness be someone who is known to at least one of the parties to the agreement or their agent/s. The full name and ID number of the witness be clearly indicated next to his/her signature for ease of reference. If you are needing more information or require assistance in this regard, please don’t hesitate to contact us.