In Phumelela Local Municipality v Telkom SA SOC Limited the Court assessed whether a purported affidavit had been properly signed in terms of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, as well as its Regulations.
An affidavit is a written declaration sworn to by the deponent – either by way of an oath or affirmation – in the presence of a commissioner of oaths.
Oath vs affirmation
The Regulations draw a clear distinction between an oath and an affirmation. Different words must be said by the deponent in each case:
An oath is in Regulation 1(1):
“I swear that the contents of this declaration are true, so help me God”
An affirmation is in Regulation 1(2):
“I truly affirm that the contents of this declaration are true”.
The main contention was the word “oath” contained in the heading to the declaration contradicted the affirmation taken by the Commissioner of Oaths. The Court found that the failure to ascertain whether the deponent was taking the oath or making an affirmation evidenced that the Commissioner did not properly administer the oath or affirmation.
In order to properly discharge his or her duties, a Commissioner of Oaths must ascertain whether the deponent is making the declaration under oath or affirmation that the declaration is true.