Commissioning of oaths in the 21st century

December 1st, 2021
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In the recent High Court judgment of Knuttel NO and Others v Shana and Others (GJ) (unreported case no 38683/2020, 27-8-2021) (Katzew AJ), the court had to decide whether the rules related to the commissioning of affidavits could be relaxed in certain circumstances.

The deponent to the founding affidavit was infected with COVID-19 at the time of deposing and certain extraordinary steps were taken for the commissioning of the oath. The question that essentially had to be answered was whether there was substantial compliance with the requirements for the commissioning of the oath to the founding affidavit and whether the extraordinary steps taken for the commissioning constituted substantial compliance with the requirements for the commissioning of oaths.

The respondents principally complained that the founding affidavit was not signed by the deponent in the presence of the Commissioner of Oaths (the commissioner) and that this conflicted with the Regulations Governing the Administering of an Oath or Affirmation (the Regulations), which were made by the Minister of Justice in terms of s 10(1)(b) of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act). The Act empowers the minister to make regulations prescribing the form and manner in which an oath or affirmation shall be administered, and a solemn or attested declaration shall be taken, when not prescribed by any other law. Regulation 3(1) requires that a deponent shall sign the declaration in the presence of the commissioner.

The legal practitioner on behalf of the applicant deposed to a separate affidavit wherein he gave a detailed explanation of the steps taken by him to ensure substantial compliance with the requirements in reg 3(1) and to ensure that the deponent to the founding affidavit signed in the presence of the commissioner, which, as already stated, was physically impossible due to the deponent’s infection with COVID-19 at the time.

The procedure followed by the legal practitioner can be summarised as follows:

  • An unsigned draft founding affidavit was e-mailed to the deponent with instructions to read, initial and sign it before e-mailing it back to the legal practitioner.
  • The legal practitioner then engaged the services of a commissioner who, in the legal practitioner’s presence in the office of the commissioner spoke to the deponent via a video WhatsApp call.
  • Having identified the deponent as the person she professed to be, the commissioner then posed the usual questions before she administered the oath in the conventional way, except that the deponent initialled and signed the affidavit prior to the video call.

Considering the question posed, the court referred to the full court judgment of S v Munn 1973 (3) SA 734 (NC), which confirmed that the Regulations are directory only and that non-compliance would not invalidate an affidavit if there was substantial compliance with the formalities in such a way as to give effect to the purpose of obtaining the deponent’s signature to an affidavit. The Full Court in the Munn case found that the purpose of obtaining the deponent’s signature to an affidavit is primarily to obtain irrefutable evidence that the relevant deposition was indeed sworn to. Consequently, non-compliance with the Regulations does not per se invalidate an affidavit. As far back as 1973, the Munn case confirmed that the requirement of person-to-person physical presence between a commissioner and deponent is not peremptory and can be relaxed on proof on the facts of substantial compliance with the requirements.

In the case under discussion the court consequently held that there was substantial compliance with the requirement for person-to-person presence in administering the oath for the founding affidavit.

This finding is in line with foreign case law where judicial recognition has been given to the relaxation of the requirement of person-to-person presence for administering of an oath. In the case of Uramin (Incorporated in British Columbia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236 (GJ), the court allowed the use of a video link to lead evidence in a civil matter from witnesses who were abroad. The judge administered the oath to them virtually before their evidence was led. Similarly, in the Canadian Superior Court of Justice (see Rabbat et al v Nadon et al 2020 ONSC 2933) the court permitted the virtual commissioning of affidavits considering the restrictions due to COVID-19.

The question of commissioning the oath without physical person-to-person presence arises more frequently in the digital era we live in. This judgment is a welcome guideline for litigants who require a departure from the rigidity of physical presence when commissioning affidavits. One would be well-advised to take heed of the judgment and the process followed therein should you be in a position, which requires some departure from the Regulations.

Theo Steyn BCom Law LLB (UP) LLM (Unisa) is a legal practitioner at VZLR Inc in Pretoria.

This article was first published in De Rebus in 2021 (Dec) DR 9.

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