The authority of a commissioner of oaths to administer an oath or affirmation, is regulated by the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act) and the several Regulations thereto (the Regulations). This article seeks to elucidate for legal practitioners the conditions under which the commissioning of oaths or affirmations are permissible according to the Act and the Regulations.

Under s 5 of the Act, a commissioner of oaths may be any individual appointed by the Minister of Justice (the Minister) or by a director of the Department of Justice (Gavin Stansfield and Zola Mcaciso ‘Who is authorised to be a commissioner of oaths?’ (www.cliffedekkerhofmeyr.com, accessed 26-9-2024)). Such appointments will be valid within any geographical area designated by the Minister or the delegated officer and will be held at the Minister’s discretion. Additionally, s 6 of the Act grants the Minister the authority to ‘designate the holder of any office as an ex officio commissioner of oaths for any area specified in a notice published in the Government Gazette’ (Stansfield and Zola Mcaciso (op cit)). This section also empowers the Minister to amend or withdraw such notices as needed.

The Regulations enumerate a range of positions designated by the Minister as commissioners of oaths. Among these are advocates admitted under the Admission of Advocates Act 74 of 1964 and its subsequent amendments, attorneys admitted under the Attorneys Act 53 of 1979, as well as notaries and conveyancers, all of whom are included within the designated offices (Stansfield and Zola Mcaciso (op cit)). Interestingly, no amendment has taken place to substitute legal practitioners in terms of the Legal Practice Act 28 of 2014 (the LPA). Although this is not covered in this article, I make the assertion that this is sufficiently covered through s 114 of the LPA.

Regulation 7(1) of the Regulations states that: ‘A commissioner of oaths shall not administer an oath or affirmation relating to a matter in which he has an interest’. ‘In terms of Regulation 7(2), regulation 7(1) does not apply to an affidavit or declaration mentioned in the Schedule’, which relevant sections state that ‘a declaration taken by a commissioner of oaths who is not an attorney and whose only interest therein arises out of his employment and in the course of his duty’ is not precluded from administering an oath or affirmation relating to a matter in which they have an interest in (Nicola Whitear ‘Attestation of an affidavit by a commissioner of oaths: What constitutes an “interest” in the matter disqualifying the commissioner of oaths?’ (www.linkedin.com, accessed 26-9-2024)).

In Royal Hotel, Dundee, and Others v Liquor Licensing Board, Area No 26; Durnacol Recreation Club v Liquor Licensing Board Area, No 26 1966 (2) SA 661 (N), the court observed that:

‘… a commissioner of oaths is required to be impartial and unbiased in relation to the subject matter of the affidavit [that he or she commissions] and that, if he is otherwise, he has an interest in the matter.’

The court determined that an attorney representing a party in a case has a vested interest in the matter, which disqualifies them from serving as a commissioner of oaths to attest an affidavit utilised in that litigation. The court further elaborated on the rationale underpinning this decision:

‘An attorney practises his profession for gain; he carries on his practice to make a living, albeit he submits to and is bound by professional rules of conduct. In the course of carrying on his practice, he has an interest to earn fees and in each matter to which he gives attention, which is an interest attributable to him. In addition, and even where he acts pro Deo or pro amico, he has an interest to improve, increase and consolidate his goodwill, which is a valuable thing; it is to his interest in this respect to bring his client’s affairs, whether litigious or otherwise, to a successful conclusion – “success breeds success”. Not only, consequently, has he these financial interests in any matter in which he is acting, but, because it is to his interest to bring his client’s affairs to a successful conclusion, he cannot be impartial and unbiased; if he functions as a commissioner of oaths in the matter, he is not independent.’

In the cases of Louw v Riekert 1957 (3) SA 106 (T) and Tambay and Others v Hawa and Others 1946 CPD 866, the courts held that ‘an interest as contemplated in regulation 7(1) must be a “pecuniary interest, or some interest by which the legal rights or liabilities of the commissioner [of oaths] are affected”’ (Whitear (op cit)).

In the matter of Joubert v Drotsky (KZP) (unreported case no AR9/2023, 30-8-2024) (Mossop J and Mngadi J), which was delivered on 30 August 2024 in the KwaZulu-Natal Division of the High Court in Pietermaritzburg, the court held that at para 36, that: ‘These words apply with equal force to an advocate who holds a trust account.’

The court further held the following:

‘Counsel ought, therefore, not to have commissioned the respondent’s affidavit. This is, quite frankly, an elemental principle and should not have to be discussed in this judgment … it is not necessary to take this point to its logical conclusion, but the facts of this matter should be a salutary warning to legal practitioners, who are not aware of the content of the regulations, to familiarise themselves with them.’

In the matter of Kouwenhoven v Minister of Police and Others 2022 (1) SACR 164 (SCA), one of the appellant’s grounds of appeal was based on whether an affidavit ‘was invalidly attested to and was therefore inadmissible’ (Whitear (op cit)). The cogency of the ground of appeal was that the attesting officer was employed in the same office as the policeman who had deposed to the affidavit, and that the attesting officer ‘therefore had an interest in the litigation to which the affidavit related, which disqualified her from acting as a commissioner of oaths’ (Whitear (op cit)). In considering various similar cases, the Supreme Court of Appeal ultimately ‘found that there was no basis for excluding’ an affidavit simply because ‘the commissioner of oaths who had attested [to] it had an interest in the matter because she was also a police officer’ (Whitear (op cit)).

In conclusion, the role of a commissioner of oaths within the framework of South African law is a critical one, governed by stringent provisions under the Justices of the Peace and Commissioner of Oaths Act and its accompanying Regulations. The Act and Regulations delineate the qualifications, limitations, and the scope of authority for commissioners of oaths, underscoring the necessity for impartiality and independence in administering oaths and affirmations.

Key to these provisions is the stipulation that a legal practitioner acting as a commissioner of oaths must not have a vested interest in the matter at hand, a principle reinforced by judicial interpretations such as those in the Royal Hotel and Joubert cases. The courts have consistently emphasised that an attorney or any other individual with a financial or personal stake in the litigation cannot serve as an impartial commissioner of oaths. This principle is crucial to maintaining the integrity of legal proceedings and ensuring that affidavits and declarations are attested to without any bias.

Recent case law, including the Kouwenhoven matter, illustrates the evolving application and interpretation of these regulations, highlighting both the challenges and the judicial responses to potential conflicts of interest. Legal practitioners must be vigilant in understanding and adhering to these regulations to avoid the pitfalls associated with conflicting interests, thereby safeguarding the credibility of their professional practice and the legal processes they engage with.

Considering these insights, it is imperative for legal professionals to familiarise themselves with the detailed requirements and limitations imposed by the Act and Regulations. Awareness and adherence to these provisions will not only ensure compliance but also uphold the standards of fairness and impartiality crucial to the legal system.

Arniv Badal LLB (UKZN) is a Practitioner Support Supervisor in the Risk Management Department at the Legal Practitioners’ Fidelity Fund in Centurion.

This article was first published in De Rebus in 2024 (November) DR 16.