Given the changing times, it's crucial to ask: Have the South African courts evolved in their consideration of the necessity of commissioning and deposing affidavits in the physical presence of a commissioner of oaths? We analysed recent decisions on the issue specifically to determine whether one is able to commission virtually.
A commissioner of oaths has the power to administer an oath or affirmation to or take a solemn or attested declaration from any person, in accordance with section 7 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 ("the Act"). The issue surrounding commissioning came to the fore during the COVID-19 pandemic, including affidavits, which are electronically (virtually) commissioned. You can refer to our previous article on the virtual commissioning of affidavits here.
In terms of the Regulations Governing the Administration of an Oath or Affirmation promulgated under section 10 of the Act ("the Regulations"), specifically Regulation 3:
"(1) The deponent shall sign the declaration in the presence of the commissioner of oaths.
(2) If the deponent cannot write, he shall, in the presence of the commissioner of oaths, affix his mark at the foot of the declaration..."
In the case of Natal Joint Municipal Pension Fund v Endumeni Municipality, Wallis JA cautioned the judiciary "to be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To so do in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation".
What does the case law say?
The interpretation of 'in the presence of' for the purpose of commissioning has been a subject of debate. Judges in various cases across the country have reasoned differently on this issue, leading to different conclusions. This divergence of views underscores the need for a clear and uniform understanding of this phrase in the context of commissioning.
In the Gqeberha High Court, in the case of FirstRand Bank Limited v Briedenhann, an affidavit was deposed to and commissioned virtually. The argument put forward for its acceptance was that 'presence' was achieved by sound and sight through a live video stream. The live video stream allowed the commissioner of oaths to witness the party deposing to the affidavit, thus fulfilling the requirements of 'in the presence of' as laid out in the Regulations, albeit virtually. However, the argument did not find favour with Goosen J. Despite acknowledging the evolving technological landscape in the wake of the pandemic, Goosen J erred on the side of caution in line with the call of Wallis JA and therefore held that 'virtual presence' does not meet the requirements of the Regulations. This decision was supported by the 2024 decision of Fisher J in the Johannesburg High Court, in the case of SB Guarantee Company (Pty) Ltd v De Sousa. Fisher J further delved into the concept of 'substantial compliance'.
The court has a discretion to admit affidavits in court proceedings if there has been substantial compliance with the Regulations. Fisher J noted that whilst, for instance, in the FirstRand case, due to the COVID-19 restrictions, it was not possible to be "in the presence of" a commissioner, it is not for parties to litigation to elect to substantially (i.e. not in full) comply with statutory regulations. In SB Guarantee, Fisher J raised concerns surrounding the "substantial compliance" argument. "The fact that a regulation is directory does not mean that a party may deliberately set out to achieve substantial compliance with such regulation rather than comply with its requirements."
In the Johannesburg High Court, in the case of Africa's Best Foods (Pty) Ltd v ED Food S.R.L., the deponents to affidavits were in Italy and had their affidavits commissioned over a video conference by a commissioner of oaths in South Africa. The admissibility of these papers was challenged in terms of the Act, as well as Rule 63 of the Uniform Rules of Court. Rule 63(4) states, "any court of law or public office may accept as sufficiently authenticated any document which is shown to the satisfaction of such court or the officer in charge of such public office, to have been actually signed by the person purporting to have signed such document." Moultrie AJ held that under Rule 63(4), evidence can be adduced to verify the deponent having signed the papers. This is not an exercise of judicial discretion. The affidavits were admitted in this case as there had been substantial compliance with the Regulations.
Lastly, in the Pretoria High Court, in the case of LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services, Swanepoel J reviewed the Regulations in light of technological advances in recent years and noted that "legislation has not always kept abreast of technology." Drawing on the above cases and Wallis JA's caution in Natal, Swanepoel J held that while it is tempting to interpret Regulation 3 broadly to include "virtual presence", it would lead to ignoring the clear meaning of the words as promulgated. The application for the broader interpretation was therefore dismissed.
The way forward and concluding remarks
It is evident from case law that the Courts recognise the benefits of technology concerning commissioning documents for legal proceedings. Rightly so, however, the Courts have not crossed the line into the realm of legislating. A revision of the Regulations may be warranted in light of technological advancements in recent years to allow for a "virtual" presence to be considered valid and compliant with the Regulations. But, until an amendment is made, the Courts will likely not look favourably upon those who argue "satisfactory compliance" with the Regulations, where full compliance can and ought to be achieved. While circumstances may warrant substantial (rather than full) compliance with the Regulations, parties must know that it is not their choice to elect "substantial compliance" over full compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.