LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services (GP) (unreported case no 2023-010096) (Swanepoel J)

The matter of LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services (GP) (unreported case no 2023-010096) (Swanepoel J) is another judgment surrounding the interpretation of the Regulations Governing the Administering of an Oath or Affirmation (the Regulations) in terms of s 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act).

In LexisNexis, Swanepoel J had to adjudicate an application in the unopposed motion court where the applicant sought an order in the following terms:

‘(3.1) That it be declared that the words “in the presence of” in Regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation, published under Government GN 1258 in GG3619 dated 21 July 1972 are to be broadly interpreted and shall include the administration of an oath or affirmation by means of live electronic communication, consisting of simultaneous audio and visual components;

(3.2) That it be declared that Regulation 3 does not require the use of an advanced electronic signature as contemplated by section 13 of the Electronic Communications and Transactions Act 25 of 2002.’

The regulations prescribe how the oath or affirmation must be administered, and regulation 3 provides that:

‘(1) The deponent shall sign the declaration in the presence of the commissioner of oaths.

(2) If the deponent cannot write he shall in the presence of the commissioner of oaths affix his mark at the foot of the declaration: Provided that if the commissioner of oaths has any doubt as to the deponent’s inability to write he shall require such inability to be certified at the foot of the declaration by some other trustworthy person.’

The applicant argued that:

• The purpose of the Act and the Regulations is to ensure that the commissioner of oaths can view a deponent’s identity document in order to verify the deponent’s identity.
• A virtual meeting would be sufficient to allow the commissioner of oaths to ensure that the deponent understands the contents of the declaration, and that the deponent’s signature and the certification of the commissioner of oaths is appended to the declaration.
• The purpose of the Act can be achieved, even though the commissioner of oaths and the deponent may not be in each other’s physical presence.

In his judgment, Swanepoel J distinguished the cases of Knuttel NO and Others v Bhana and Others [2022] 2 All SA 201 (GJ) and the unreported judgment in ED Food SRL v Africa’s Best (Pty) Ltd (GJ) (unreported case no 2022/1245, 14-3-2024) (Den Hartog AJ) on the basis that in these cases the courts were asked to accept the affidavits as being in substantial compliance with regulation 3, notwithstanding that the affidavits in those cases were commissioned virtually. Those courts were not requested to interpret the Act and the regulations broadly so that the words ‘in the presence of’ include deponents appearing virtually by electronic means.

The only matter which Swanepoel J accordingly considered in the LexisNexis case was the correct interpretation of the regulations. In reaching his decision, the judge relied on the Oxford English Dictionary definition of ‘presence’ which means ‘the fact or condition of being present; the state of being with or in the same place as a person or thing … .’ The judge referred to the words of Wallis JA in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) where he cautioned that ‘judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used’ and noted that the purpose of a judge who is called on to interpret a statute is to ascertain the objective meaning of the words used, within the context of the document as a whole, and given the purpose of the document.

Swanepoel J found the applicant’s arguments on the object of the Act and regulations being achieved by virtual means tempting. However, he dismissed the application noting that the interpretation which the applicant argues for would require him to ignore the clear meaning of the words used in the regulations. The judge was not willing to cross the divide between interpretation and legislation as warned of in the Endumeni case and to impose its view of what would be sensible or business-like where the wording of the regulations is clear.

So where does it leave us? The court’s default position regarding commissioning of oaths is that the oath or affirmation must be administered in the physical presence of the commissioner. Where the physical presence of a deponent before the commissioner is not reasonably possible, it is open to the party relying on the affidavit to argue that there had been substantial compliance with the regulations in a particular case.

Although one must agree with the decision of the court, which is based on sound precedent relating to the interpretation of statutes, there is clearly a need for legislative reform to ensure that the statutes of our country hold pace with the technological advances of the 21st century.

• See Theo Steyn ‘Commissioning of oaths in the 21st century’ 2021 (Dec) DR 9.

Theo Steyn BCom Law LLB (UP) LLM (Unisa) MBA (Quantic) is a legal practitioner at VZLR Incorporated.

This article was first published in De Rebus in 2024 (July) DR 36.