The Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (“the Act”) regulates the execution of affidavits in south Africa, broadly speaking. Section 10 of the Act provides for the promulgation of regulations “prescribing the form and manner in which an oath or affirmation and declaration should be administered when not prescribed by any other law”. Regulation 3(1) of the Regulations Governing the Administering of an Oath or Affirmation (“Regulation”) provides that the “deponent shall sign the declaration in the presence of the commissioner of oaths”.

The position prior to VJS v SH [2024] ZAWCHC 333 (22 October 2024) 

In the case of FirstRand Bank Limited v Briedenhann 2022 JOL 53294 (ECP) (the “FirstRand Bank case”), the court in interpreting the phrase “In the presence of” held that the language of regulation 3(1) read in context of the regulations as a whole suggests that the deponent is required to append their signature in the physical presence or proximity of the commissioner. The court disagreed with assertions that “in presence of” may be achieved by sight and sound. It reiterated that the plain meaning of the expression “In the presence of” within the context of regulation 3(1) requires the deponent to take an oath and sign the declaration in physical proximity to the commissioner. Consequently, it held that the regulation does not cover deposition in the virtual presence of a commissioner. The court appreciated the advantages of the LexisSign system but cautioned that this should not be used as basis to ignore existing regulations. 

Background to VJS v SH [2024] ZAWCHC

Brevitas causa, only the facts in relation to commissioning in the presence of a commissioner of oaths will be reiterated. The applicant in the above matter was, for work purposes based in Pakistan, but domiciled in the Western Cape. An unsigned founding affidavit prepared on the applicant’s behalf was transmitted to him via email by his legal representatives present in South Africa to commence a High Court application to be brought on his behalf. Thereafter, the applicant, his legal team, and a commissioner of oaths held a video conference call on Zoom for purposes of commissioning the affidavit. 

The evidence was that the applicant identified himself by producing his identity document which was confirmed by his legal representative and proceeded to depose to the affidavit with its annexures with the commissioner on the call. The commissioner confirmed the applicant’s responses to all the questions to be posed in terms of the regulations, and the applicant took the oath as to the authenticity of the contents of his declaration. Following this, the applicant scanned and emailed a copy of his signed affidavit to his attorneys who transmitted same to the commissioner. While on the video conference call, the applicant’s signed affidavit was initialled, completed, and signed by the commissioner as required by the Act. Following this unconventional attestation or commission, the commissioner filed a confirmatory affidavit stating that apart from the medium of a Zoom video call used, all the regulations were complied with. 

Interpretation of “In the presence of” requirement 

Whether there is compliance with the regulations above is a matter of fact, not of law. The court has the discretion to refuse to accept an affidavit attested otherwise than in compliance with the regulations. In deciding this case, the court held that it is evident that regulation 3(1) requires that the deponent signs the declaration in the presence of the commissioner of oaths. In interpreting the meaning of “in the presence of”, the court referred to the case of Gulyas v Minister of Law and Order 1986 (3) SA 934 (C) which equated this reference to be alike to being within eyeshot or in the immediate vicinity for the purpose of section 40 of the Criminal Procedure Act. The court further referred to FirstRand Bank case which held that the language of regulation 3(1) read in the context of the regulations as a whole, suggests that the deponent is required to append their signature to the declaration in the physical presence or proximity of the commissioner. This case further concluded that it is not ordinarily open for a person to elect to follow a different mode of oath administration than that which is statutorily regulated. 

In contrast, the court in VJS referred to section 37C of the Superior Courts Act 10 of 2013 and section 51C of the Magistrates Courts Act 32 of 1944 which permits courts to accept or receive evidence via remote audiovisual links in civil proceedings. Having regard to these developments, it was held that they are a testament that the benefits of technology should be utilized and incorporated into our justice system to improve the efficiency of civil litigation. Further to that, the court referred to section 1(3) of the Domestic Violence Regulations 2023, which entitles clerks of the court to administer an oath or affirmation through an audio-visual communication where documents submitted electronically need to be made under oath. The court regarded the latter as a deviation from the physical presence requirement. In addition, the court referenced sections 13(4), 14, and 15 of the Electronic Communications and Transactions Act as examples that, given the unfolding modernization of the courts, that Act does facilitate the use of electronic communications, particularly the use of data messages which includes e-signatures. 

Application

The Court acknowledged the FirstRand Bank case but held that each case must be dealt with on its own merits. It held that if a witness can take the oath and testify through a close circuit television or audiovisual link as envisaged in section 37C of the Superior Courts Act and section 158 of the Criminal Procedure Act 51 of 1977, the same principle must be applied with equal force to a deponent who takes an oath when an affidavit is commissioned through an audiovisual link. This is because there is no difference between taking an oath through a virtual platform for testifying and taking an oath when an affidavit is commissioned using an audiovisual link. The court further referred to Incorporated in British Columbia t/a Areva Resources South Africa v Perie 2017 (1) SA 236, where it was held that courts must adapt to the requirements of modernities within which they operate and open themselves to technology. It was emphasized that our legal system depends on evidence provided in affidavits which must be signed and commissioned.

Having regard to the above, the Court cautioned that there must still be substantial compliance with the Regulations before condonation for non-compliance is granted. It was held that the commissioner in this case was a practicing advocate who confirmed in a confirmatory affidavit that he had no interest in the matter. He confirmed that the regulations regarding the manner of commissioning were complied with save that it was done on a Zoom video call. Regard was had to the affidavits submitted by the commissioner and the applicant’s legal team, and it was held that it is evident that the applicant produced a form of identification before the oath was administered, and the affidavit was signed virtually in the sight of the commissioner. The only difficulty in the case was that the affidavit was not signed in the physical presence of the commissioner as required by the regulation. Therefore, it was held that there was substantial compliance with the Act and the Regulations in this case and that it would not be in the interests of justice to require the applicant to travel to SA to have his affidavit commissioned in the physical presence of the commissioner.

Comments

The case serves as new authority against the FirstRand Bank case in that deponents do not necessarily have to append their signature to the declaration in the physical presence or proximity of the commissioner but may do so virtually so long as there is substantive compliance with the regulations and the interests of justice so dictate. Virtual commissioning of affidavits or any other documents could serve as a more cost-effective measure in civil litigation and an improved means to access courts. It will further expedite the finalization of cases. We support the court's recommendation that it is inherently critical that the Justice of the Peace and Commissioners of Oaths Act and Relevant Regulations be amended for consistency with modernization and with reference to the various sources mentioned above, by allowing for electronic signing and commissioning of affidavits.