Determining what ‘in the presence’ means for the virtual commissioning of oaths

November 1st, 2022

Picture source: Gallo Images/Getty


By Danielle Hugo

One of the challenges that had to be overcome within the legal arena – following the disruption caused by the COVID-19 pandemic – was that of the commissioning of affidavits. The checklist for the virtual commissioning of an affidavit is as follows:

  • Utilise a virtual platform that will ensure the deponent and the commissioner can both see and hear each other, and that the affidavit is signed by the deponent while the commissioner witnesses the signing.
  • Append a commissioner’s certificate customised for virtual commissioning in the following format:

‘I hereby certify, by way of appending an advanced electronic signature hereto, that the Deponent has electronically signed and sworn before me on this the __ day of ________ 20___, by way of visual video meeting held with the Deponent on an electronic platform and he/she has declared that; he/she knows and understands the contents of this affidavit; that it is the truth to the best of his/her belief; and that he/she has no objection to taking the prescribed oath, which the Deponent considers to be binding on their conscience, the Regulations Governing the Administering of an Oath or Affirmation in GN R1258 GG3619/21-7-1972, as amended, having been substantially complied with.’

  • File an additional affidavit by the commissioner setting out the reasons why reg 3(1) cannot be complied with. This additional affidavit should also set out all the steps that were taken to ensure substantial compliance with reg 3(1).
  • It is advisable that the additional affidavit should be commissioned strictly in compliance with the regulations.

According to reg 2(1) of the regulations published in terms of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act) under GN R1258 GG3619/21-7-1972, a commissioner of oaths who administers the oath or affirmation to any person shall ask the deponent –

‘(a) whether he knows and understands the contents of the declaration;

(b) whether he has any objection to taking the prescribed oath; and

(c) whether he considers the prescribed oath to be binding on this conscience’.

‘If the deponent acknowledges that he knows and understands the contents of the [affidavit] and informs the commissioner of oaths that he does not have any objection to taking the oath and that he considers it to be binding on his conscience’ (reg 2(2)).

‘The deponent shall sign the declaration in the presence of the commissioner of oaths’ (reg 3(1)).

In a number of decisions it has been held that reg 3(1) does not require the commissioner of oaths to certify that the affidavit has been signed in their presence (see Ladybrand Hotels (Pty) Ltd v Stellenbosch Farmers’ Winery Ltd 1974 (1) SA 490 (O) at 492G – 493A; Nkondo v Minister of Police and Another 1980 (2) SA 362 (O) at 365A; Cape Sheet Metal Works (Pty) Ltd v JJ Calitz Builder (Pty) Ltd 1981 (1) SA 697 (O) at 699B). If an objection is made to the validity of the affidavit as a result of the alleged non-compliance with the regulations, the onus rests on the person objecting to the affidavit to produce evidence to prove such a failure (see Ladybrand Hotels at 493C – D). In the case of Q4 Fuel (Pty) Ltd v Ellisras Brandstof en Olie Verspreiders (Pty) Ltd (LP) (unreported case no HCAA 08/2021, 11-11-2021) (Kganyago J), the Full Court held that although it was desirable that each and every page of the accompanying affidavits be initialled, it is not a requirement in terms of the regulations. It is advisable that the aforementioned finding be approached with caution and rather be complied with as it has become general practice to initial every page of the affidavit, as well as the annexures to prove that they form part of the affidavit. According to r 13v of the Rules Regulating the Conduct of the Proceedings of the Eastern Cape Division of the Supreme Court of South Africa published under GN R3289 GG2518/12-9-1969, it is a requirement that every page of the affidavit and annexures be initialled.

Recently in Knuttel NO and Others v Bhana and Others [2022] 2 All SA 201 (GJ), Katzew AJ was faced with, among others, ‘the question whether the extraordinary steps taken for the commissioning of the oath of the deponent to the founding affidavit, who was infected with the COVID-19 virus at the time, constituted substantial compliance with the requirements for the commissioning of oaths’. In considering the question, Katzew AJ referred to the Full Court decision in S v Munn 1973 (3) SA 734 (NC) in which it was held that the purpose of the administration of the oath is twofold, namely to –

  • add to the dignity of the occasion; and
  • obtain irrefutable evidence that the relevant deposition was indeed sworn to.

In the Munn case it was further held that the regulations were directory only. Therefore, where there had not been strict compliance with the regulations, the affidavit would not necessarily be deemed null and void. The affidavit could still be valid, if there had been substantial compliance with the formalities in such a manner that it still gave effect to the purpose of the regulations. The purpose of administering the oath thus lies at the heart of the enquiry into whether there has been substantial compliance with the Regulations.

In the Knuttel case, the applicant’s attorney explained in an additional affidavit that ‘he e-mailed the unsigned draft founding affidavit to the deponent, … with instructions to read, initial and sign it before e-mailing it back to him. He then engaged the services of a commissioner of oaths who, … spoke to the … applicant in a video WhatsApp call. Having identified the … applicant 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’s initialling and signature had been appended before the link-up’ (para 57). The court held that there was substantial compliance with the regulations and accepted the affidavit. The decision in the Knuttel case was, however, essentially obiter. This is because the averments contained in the founding affidavit that were being challenged, was also before the court in another affidavit which was commissioned strictly according to the regulations.

In Firstrand Bank Ltd v Briedenhann 2022 (5) SA 215 (ECGq) the issue of administering the oath via video conference, and whether there was compliance with reg 3(1) were also considered. The court raised a concern in regard ‘to the fact that the affidavit filed … had been signed by the deponent utilising an electronic signature and had been commissioned by way of virtual conference’ (para 6). The plaintiff in the case explained that it had set up a digital platform for the purposes of commissioning affidavits. The court held that ‘the language of reg 3(1), when read in the context of the regulations as a whole, suggests that the deponent is required to append their signatures to the declaration in the physical presence or proximity of the commissioner’ of oaths (para 25). The essential purpose of the regulations was held ‘to provide assurance to a court receiving an affidavit that the deponent, properly identified as the signatory, has taken the oath. The signature to the declaration in the presence of the commissioner establishes a guarantee that the consequences of oath-taking are understood and accepted’ (para 25). The essential features of the Briedenhann case are as follows:

It was argued that ‘presence’ could also be achieved through sight and sound. On that basis ‘virtual presence’ achieved by technology fell within the ambit of the meaning of the phrase. The court, however, did not agree. Goosen J stated that it came down to an exercise in interpretation; and that required meaning to be ascribed to the provision ‘on the basis of the language used, of what was intended and what the purpose was of the provision’ (para 27). The Justices of the Peace and Commissioners of Oaths Act 16 of 1963 dates back to 1963, so there could have been no intention of the legislature to include Zoom, Microsoft Teams or the like at the time. Goosen J held that the plain meaning of ‘in the presence’ meant within the physical proximity of the commissioner of oaths and did not extend to ‘virtual presence’.

Goosen J held further that where the directory regulations had ‘not been followed and adhered to, a court has a discretion whether or not to admit the affidavit’ (para 48). In the exercise of its discretion, two factors had to be highlighted. First, the rule of law considerations; and secondly, ‘the function of courts in dealing with novelty and innovation that fall outside of the ambit of an existing regulatory framework’ (para 49). As regards the rule of law consideration, it was ‘not open to a person to elect to follow a different mode of oath administration’ (para 51). The mere fact that a regulation was directory, ‘does not mean that a party can set out to achieve substantial compliance with such regulation rather than to comply with its requirements’ (para 51). As regards the function of courts in dealing with new innovations, it was held that it was not the function of a court to legislate. However, on exercising his discretion judicially and within the interests of justice, Goosen J found that the evidence put before him undoubtedly proved that the purpose of reg 3(1) had been met, and therefore accepted the affidavits.

Until such a time as the regulations have been amended to cater for the virtual commissioning of affidavits (which is long overdue) the point of departure is not whether the meaning of the phrase ‘in the presence’ could or should be extended to include virtual presence. It is whether the specific virtual presence employed in that specific set of circumstances constitutes substantial compliance with the regulations or not.

Danielle Hugo LLB (UP) is a legal practitioner and member of the Pretoria Society of Advocates at the Parc Nouveau Advocates’ Chambers in Pretoria.

This article was first published in De Rebus in 2022 (Nov) DR 16.

De Rebus