by Jun 25, 2024News

Technology has advanced significantly in recent years and the COVID-19 pandemic has caused a large shift in how business is conducted on a national and global scale, with the legal fraternity being no exception. In South Africa we have seen the development and continued use of virtual court hearings, as well as the introduction of the Caselines and Court Online platforms in the Gauteng Division of the High Court which have allowed for the digitization of various court processes such as issuing of proceedings, filing court documents and engaging in open communication with various court officials.

With the increase of video conferencing, one of the contentious issues that has arisen is whether the law permits a Commissioner of Oaths (“the Commissioner”) to administer an oath or affirmation virtually using video call platforms as opposed to being in the physical presence of the deponent concerned.

In terms of Regulation 3(1) published under the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963 (“the Regulations”) / (“the Act”), “the deponent shall sign the declaration in the presence of the commissioner of oaths” (own emphasis added). In the case of ED Foods S.R.L. v Africa’s Best (Pty) Ltd (2022/1245) [2024] ZAGPJHC1619, the Respondent challenged the validity of the Applicant’s affidavits on the basis that they were commissioned virtually as the deponents were in Italy, and thus were not “in the presence of the Commissioner of Oaths” as required by the Regulations. During the video call, the Commissioner:

  • satisfied himself of the identity of the deponents by requesting and viewing their identity documents by using the camera function on his computer;
  • confirmed that the deponents had printed out the same affidavits that they had sent to the Commissioner;
  • administered the oath and the affidavits were signed by the deponents; and  
  • The deponents scanned the signed affidavits back to the Commissioner who checked that they were the same affidavits as initially sent. The Commissioner then signed and stamped the affidavits as final certification of his satisfaction with the requirements.

The Court considered the meaning of the word “presence” as per the Oxford Dictionary and ultimately determined that failure to comply with statutory provisions does not necessarily render the actions as invalid, provided that there is substantial compliance with the legislation taking into account the relevant circumstances of the matter (own emphasis added).

There are various cases where substantive compliance was considered. In Knuttel N.O and Others v Bhana and Others (38683/2020) [2022] 2 All SA 201 (GJ) the deponent to the Founding Affidavit was infected with COVID-19 and was unable to attend to the Commissioner in person. The Commissioner, via video call, identified the deponent and administered the oath virtually. Having regard to the facts of the case, the Court admitted the deponent’s affidavit.

However, in contrast, in the case of LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services (2023-010096) ZAGPPHC 446 the Court was asked to broaden the interpretation of “in the presence of” to include the administration of oaths or affirmations via live electronic communication that incorporates both audio and visual elements. If successful, this would entail that what is currently the exception to the general rule that is applicable would become applicable in all cases going forward. It was found by the Honourable Judge Swanepoel that the meaning and intention of the specific words “in the presence of” used in the Regulations is clear, and without compelling circumstances, ruling in favour of the Applicant purely out of convenience would result in an abuse of the doctrine of separation of powers. As such, the application was dismissed.

Allowing for the virtual commissioning of affidavits promotes and enables accessibility to deponents that find themselves in difficult positions when they are unable to be in the physical presence of a Commissioner, provided that there is substantial compliance with the requirements of the Act. However, it is important to note that litigants do not have the option of willing non-compliance in circumstances where compliance with the Regulations is possible.

In order to keep up with global trends and the advancement of technology for practical purposes, it would be preferable that our law is developed and that the Act, as well as the Regulations thereto, ought to be reviewed and amended by the legislature in order to achieve this.