This article will discuss the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (Act) and its accompanying Regulations, which require that oaths must be administered to the deponent “in the presence of” a commissioner of oaths (commissioner), with reference to the Pretoria High Court cases of LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services [2024] ZAGPPHC 446 and Nedbank v Altivex 15 (Pty) Ltd and Others [2024] ZAGPPHC 597.

LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services

Background

The applicant brought an unopposed application seeking an order:

• for the words “in the presence of” in Regulation 3 of the Act to be interpreted broadly, to include the virtual presence of a commissioner, and;
• for Regulation 3 of the Act to be interpreted in such a way that it does not require the use of an advanced signature as envisaged by section 13 of the Electronic Communications and Transactions Act 25 of 2002 (ECTA).

The law

The Minister of Justice promulgated regulations in terms of section 10 of the Act, which prescribe how the oath or an affirmation is to be administered.

Regulation 3 provides that the deponent shall sign the declaration in the presence of the commissioner.

Regulation 4(1) states that below the deponent’s signature or mark the commissioner shall certify that the deponent has acknowledged that they know and understand the contents of the declaration and they shall state the manner, place and date of taking the declaration.

Regulation 4(2) provides that the commissioner shall sign the declaration and shall print their business address and full name below their signature. They shall also state their designation and the area for which they hold their appointment.

The applicant’s argument

The applicant’s contended that:

• the purpose of the Act and the Regulations is to ensure that the commissioner is able to view the deponent’s identity document in order to verify the deponent’s identity;
• if the deponent and the commissioner meet virtually, the commissioner can nevertheless ensure that the deponent understands the contents of the declaration, and that the deponent’s signature or mark, as well as the certification of the commissioner, is appended to the declaration; and therefore
• the purpose of the Act can be achieved even though the commissioner and the deponent may not be in each other’s physical presence.

The court’s decision

The court referred to two cases dealing with non-compliance with the Regulations concerning the administration of oaths or affirmations.

The first was Knuttel N.O. and Others v Bhana and Others [2022] 2 ALL SA 201 (GJ), where the founding affidavit was administered virtually, as the deponent had contracted COVID-19 and was unable to attend the commissioner’s offices. The applicant’s attorney explained comprehensively what steps had been taken in order to comply with the Regulations, as far as possible. The court in Bhana, relying on S v Munn [1973] (3) SA 734 (N.C.D.) held that the Regulations were directory, rather than peremptory, and that, if there is substantial compliance with the Regulations, a court has a discretion to allow the affidavit into evidence. The court in Bhana held that in that particular case, there had been substantial compliance with the Regulations and the in limine point was dismissed.

The second case the court referred to was that of ED Food S.R.L v Africa’s Best (Pty) Ltd [2024] ZAGPJHC 1619, where the founding and confirmatory affidavits of the applicant had been commissioned via video conference call, while the deponents were in Italy, and the commissioner was in South Africa. The court in Africa’s Best expressed the opinion that courts should “open themselves to the modern trend of technology”. The court further held that in that particular case there had been substantial compliance with the Regulations, and the affidavits were admitted into evidence.

The court pointed out that these two cases were requests to the court to accept the affidavit on the basis that there was substantial compliance with Regulation 3, notwithstanding that the affidavits were commissioned virtually. In the matter at hand, however, the court was asked to interpret the Act and Regulations broadly, so as to provide that the administration of oaths through a virtual platform accords with Regulation 3.

In looking at the meaning of “presence”, the court:

• referenced the Oxford English Dictionary, which defines “presence” as “the fact or condition of being present; the state of being with or in the same place as a person or thing”, and “a number of people assembled together’’; and
• referred to the case of Gulyas v Minister of Law and Order [1986] (3) SA 934, where the court held that presence meant immediate proximity.

The court also quoted from Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] (4) SA 593 (SCA) which stated that: “Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.”

The court then referred to Firstrand Bank Ltd v Briedenhann [2022] (5) SA 215 (ECG), as the only matter in which it was argued that Regulation 3 should be interpreted in the manner that applicant contends for. Briedenhann held:

“The language of Regulation 3 (1) when read in the context of the Regulations as a whole, suggest that the deponent is required to append their signature to the declaration in the physical presence or proximity of the commissioner. This accords with the concern for place, insofar as the exercise of the authority to administer the oath is concerned, as appears from the Act.”

The court agreed with Briedenhann, and held that the case rightfully declined to apply the broad interpretation sought therein, as is the case in this matter. The applicant argued that Briedenhann was incorrect and if it were allowed to stand, there would be uncertainty as to whether the oath or affirmation may be administered virtually.

The court held that this criticism of Briedenhann was incorrect, as the default position is that the oath or affirmation must be administered in the physical presence of the commissioner. In certain circumstances, where the physical appearance of the deponent before the commissioner is not reasonably possible, then the party relying on the affidavit must argue that there had been substantial compliance with the Regulations in the particular case.

The applicant also argued that the object of the Act and the Regulations can be achieved by virtual means as the commissioner can identify the deponent, confirm that the deponent is familiar with the contents of the affidavit, and the commissioner can observe the deponent signing the affidavit. The commissioner can append their signature electronically, thereby complying with the provisions of section 13 (4) of the ECTA.

The court, while acknowledging that this was a tempting proposition to follow, ultimately concluded that to find for the applicant would require the court to ignore the clear meaning of the words in the Regulations, which would cross the divide between interpretation and legislation, as warned of in Endumeni.

The court accordingly dismissed the application.

Nedbank v Altivex 15 (Pty) Ltd and Others

Background

The applicant had delivered an application for summary judgment. The respondents raised two points in limine in opposition, one of which was the remote commissioning of the affidavit in support of summary judgment.

The applicant submitted that the court should, on the basis of Briedenhann, exercise its discretion based primarily on considerations of substantial compliance with the provisions of the Act and condone the virtual commissioning of the affidavit.

The court’s decision

In Briedenhann, as well as the cases referred to therein, it was made abundantly clear that the exercise of the court’s discretion in that matter was based on the relevant factual matrix presented to it by the applicant as explanation for the non-compliance:

“The advantages of the system used by the plaintiff are, however, not a basis upon which an existing regulation may be ignored. It is, in my view, not open to a person to elect to follow a different mode of oath administration to that which is statutorily regulated. That is true even if in doing so every effort is made to substantially comply. The regulations stipulate that the declaration is to be signed in the presence of the commissioner. Unless that cannot be achieved, the Regulations must be followed. The fact that the regulation is directory does not mean that a party can set out to achieve substantial compliance with such regulation rather than to comply with its requirements…

In the Knuttel case the need to protect persons from infection with COVID-19 precluded the appearance of the deponent before the commissioner. In the Munn, Sopete and Mtembu matters, all of which involved criminal prosecutions, the non-compliance was inadvertent and related to form. That was also the case in the other instances I have highlighted. When a court is asked to exercise its discretion to condone non-compliance, the reasons advanced for such non-compliance are plainly relevant. I doubt that a court would readily accept that an affidavit substantially complies with regulated formalities in circumstances where the non-compliance is as a result of a deliberate choice. In my view, to do so would countenance a situation of self-help.”

The court held that even though the applicant may have deposed to the exact same affidavit (regardless of the method of commissioning) and that remote commissioning may be more expedient, since Briedenhann, no legislative changes have been made to the Act or the Regulations.

The court also had regard to the doctrine of separation of powers in the Constitution, which requires that the judicial branch should not:

“[U]nder the guise of a general discretion or in the interest of justice, circumvent the authority of the legislature by condoning non-compliance with laws or regulations simply because said law or regulation may be considered archaic or outdated.”

The court held that its discretion must be exercised judicially, and if there are no facts placed before a court upon which to exercise its discretion, it cannot make a generalised finding on the commonly held views of litigants (or even the court itself) as to what is expedient and in keeping with the latest technological advancements. A court exercising its discretion in favour of applicants in each instance where virtual commissioning is used, regardless of a proper explanation for such non-compliance, would constitute impermissible judicial overreaching.

The importance of these cases

Both cases provide clarity on whether a party can depose to an affidavit virtually, and also highlight the importance of the doctrine of the separation of powers when judges interpret legislation. The cases acknowledge the advancement of technology and the need for the courts to keep up to date with modern trends. However, they simultaneously reiterate that the purpose of the courts is to interpret legislation as it stands and not to substitute the ordinary meaning with one that is in accordance with the court’s perception of what is practical.

Therefore, the default position is that the oath must be administered in the physical presence of a commissioner, unless the physical presence can be shown to not be possible having regard to the facts at hand – in which case, the oath may be administered to the deponent virtually.