With the enactment of the Legal Practice Act 28 of 2014 (LPA), a large number of legal practitioners have been admitted as attorneys and advocates – however, some of the newly minted legal practitioners seem to have misunderstood some of the implications of being admitted as such under the LPA, such as having the power to administer an oath or an affirmation and/or take a solemn or attested declaration (affidavit) or lacking such powers.
Given the aforesaid, it would be prudent to examine the applicable sections (and regulations) of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, in order to understand where the misunderstanding arises from.
The point of departure is s 6 of the Justices of the Peace and Commissioners of Oaths Act, which confers on persons who hold certain offices the powers of a commissioner of oaths, and the section reads as follows: ‘The Minister may, by notice in the Gazette, designate the holder of any office as a commissioner of oaths for any area specified in such notice, and may in like manner withdraw or amend any such notice.’
The applicable Minister has designated various offices (of titles) that, when held by the officeholder, will entitle the officeholder to exercise the powers of a commissioner of oaths. These are the ‘ex officio’ commissioners of oaths.
In relation to legal practitioners, regs 2(a), 2(b), and 2(h) of the notice ‘Designation of Commissioners of Oaths in terms of Section 6 of the Justices of the Peace and Commissioners of Oaths Act’ are of great import, hence the inclusion of the application regulations below:
‘(a) Advocate admitted in terms of the Admission of Advocates Act, 1964 (Act 74 of 1964); Admission of Advocates Act, 1964 (Act 74 of 1964) as applicable on 6 December 1977 (former Republic of Bophuthatswana); and the Admission of Advocates Amendment Proclamation 1 of 1992 (former Republic of Venda).
(b) Attorney admitted in terms of the Attorneys Act, 1979 (Act 53 of 1979); Attorneys, Notaries and Conveyancers Act, 1984 (Act 29 of 1984) (former Republic of Bophuthatswana); Attorneys Act, 1987 (Act 42 of 1987) (former Republic of Venda); and Attorneys, Notaries and Conveyancers Admission Act, 1934 (Act 23 of 1934) (former Republic of Transkei).
…
(h) Notary admitted in terms of the Attorneys Act, 1979 (Act 53 of 1979); Attorneys, Notaries and Conveyancers Act, 1984 (Act 29 of 1984) (former Republic of Bophuthatswana); and Attorneys Act, 1987 (Act 42 of 1987) (former Republic of Venda).’
What is painfully clear from reg 2 is that no provision is made in respect of legal practitioners (be it an advocate, attorney, or notary) admitted in terms of the LPA, with the unescapable conclusion being that legal practitioners admitted in terms of the LPA do not have the powers of a commissioner of oaths and hence are unable to commission any declaration (affidavit) or even certify a document as a true copy of the original.
While some may argue that the exclusion of legal practitioners admitted in terms of the LPA is merely an error, the said notice has been amended on a number of occasions since the LPA came into effect, and hence the exclusion appears intentional rather than accidental.
The above exclusion does have real-world consequences, especially given that declarations (affidavits) play a very important role in our legal system. Consequently, any purported declaration (affidavit) ‘commissioned’ by a legal practitioner admitted in terms of the LPA would not be a declaration (affidavit), and as such, such a purported declaration (affidavit) would amount to nothing more than a written statement.
In motion proceedings and conveyancing, the consequences would be greatest felt as the above-mentioned defect could lead to delays or dismissals, not to mention the associated cost implications. What immediately comes to mind in the realm of litigation is that the opposition may bring an application to set aside the purported declaration (affidavit), with the accompanying legal cost implications, which may result in an admittedly technical loss, with the client bearing the costs associated with such loss.
Should a legal practitioner, admitted in terms of the LPA, desire to have the powers of a commissioner of oaths, then the legal practitioner would need to seek the same in terms of s 5(1) of the Justices of the Peace and Commissioners of Oaths Act and be appointed as such by the Minister, any director in the Department of Justice, or a person having the delegated power to appoint such a legal practitioner. Unfortunately, it appears that a High Court is not vested with the power to appoint legal practitioners, admitted in terms of the LPA, as commissioners of oaths.
Until the notice ‘Designation of Commissioners of Oaths in terms of Section 6 of the Justices of the Peace and Commissioners of Oaths Act’ is amended to include legal practitioners admitted in terms of the LPA, the above position will remain, and hence it is imperative that legal practitioners be aware of whether or not they are commissioners of oaths.
Bruce Andre Barkhuizen LLB (UJ) is a legal practitioner and notary at Bruno Simão Attorneys in Johannesburg.
This article was first published in De Rebus in 2024 (December) DR 20.
