The Regulations further provide that a deponent must sign the declaration or affidavit in the presence of the commissioner of oaths. The phrase “in the presence of the commissioner of oaths” became a point of contention in the case of VJS v SH (19578/2024) [2024] ZAWCHC 333 (22 October 2024). In essence, the High Court was asked to determine whether a deponent could commission an affidavit virtually in light of the wording of the provisions of the Act and Regulations.

Factual background

The deponent in this case was domiciled in the Western Cape but situated in Islamabad, Pakistan for work purposes. The deponent was required to depose to an affidavit in a dispute concerning parental responsibilities. On 5 September 2024, the deponent, his attorney and a commissioner of oaths joined a Zoom meeting. The deponent proceeded to depose to the affidavit from Islamabad and thereafter scanned and transmitted a copy to the commissioner of oaths and his attorney. The commissioner of oaths, in the presence of both the deponent and the attorney, printed out the affidavit and completed his particulars as required in terms of the Act. The original affidavit was subsequently couriered to the deponent’s attorneys and filed in court.

The court’s decision

The court considered the facts of this particular case in conjunction with the applicable provisions set out in the Act and Regulations. The court emphasised that it is trite that a court enjoys a discretion to reject or accept an affidavit that has been deposed to in a manner that is not compliant with the Act. A key consideration would be whether substantial compliance had been demonstrated. A determination of whether there has been substantial compliance is a matter of fact and not law, i.e. it will depend on the circumstances of each case.

The court also considered recent developments to the Superior Courts Act 10 of 2013 and the Magistrates Court Act 32 of 1944 which permit courts to receive evidence via remote audiovisual links in non-criminal proceedings, thereby enhancing flexibility and accessibility of the judicial process.

The court noted that the Act was promulgated over 60 years ago at a time when internet and video conferencing were not as common as they are today.

Ultimately, the court found that there had been “substantial compliance with the Act and Regulations” and, consequently, the affidavit was in order. The court further expressed a view that in order to align with the ongoing modernisation of the judicial system, the Act and Regulations may need to be amended to allow for electronic signing and commissioning of affidavits. The court emphasised that electronic signing and commissioning of affidavits is less cumbersome, more cost effective, and aids in the quicker resolution of cases.

Importance of this judgment

The court’s findings that there had been substantial compliance with the Act, even though the affidavit in question was deposed to virtually by the deponent, are coherent with the digitisation and globalisation of the legal profession and judicial systems. In today’s day and age, it is not uncommon for a deponent to be in a different geographical location to their attorneys or the commissioner of oaths, thus making it impractical for a deponent to depose in the physical presence of the commissioner of oaths.

It is important to take note that the court did not declare the relevant provisions of the Act and Regulations to be unconstitutional, but stated that courts must respect the legislation, provided that it does not offend the Constitution.