In South Africa, the Justices of The Peace and Commissioner of Oaths Act [16 of 1963] govern Commissioners within our Republic.

How To Commission Affidavits Remotely when in South Africa

To have an Affidavit accepted in a South African Court – that was not deposed to in the physical presence of a Commissioner – said oath should be administered through a video call or link, preferably while it is recorded.

The Commissioner overseeing the process should depose to a separate Affidavit providing a detailed explanation of the steps taken to ensure substantial compliance with the Act’s requirements and regulations.

This should only be done in exceptional circumstances.

How To Commission Affidavits Remotely when outside South Africa’s Borders

Our Courts at this stage do not allow Commissioners of Oaths to administer the Oath via a video call or link if the witness is outside the borders of South Africa.

Currently, affidavits signed for South African Courts purposes must be signed in person, when the witness is outside South Africa, at a designated Commissioners of Oath, working for the South African Government, such as the Head of the South African diplomatic or consular mission.

This is unsatisfactory, and the Government has been petitioned to make changes to the law.

Typical Commissioning of Affidavits in South Africa

In terms of this Act, in normal circumstances, a Commissioner of Oaths is required to verify the identity of any person making a sworn statement.

In addition, the Commissioner is also responsible for confirming the documents attached to an affidavit (a declaration of facts) and confirming that the person signing the affidavit knows and understands its contents. This is done by way of the oath or affirmation.

The Commissioner and the deponent will initial each page of the affidavit together with any annexures attached to the affidavit. They will also sign the document which the Commissioner then stamps.

Until recently, this was always done in the physical presence of the Commissioner of Oaths.

South African Courts Have Relaxed Some of The Rules

In recent times, due to the global dependency on virtual technology and the emergence of the Covid-19 pandemic, South African Courts have relaxed some of the rules that would have usually been required of Commissioners by the aforementioned Act.

In a recent judgment, the Gauteng High Court had to decide, considering the above, whether or not the rules relating to the commissioning of affidavits could be relaxed.

The Court specifically looked at Regulation 3 (1) of the Act, which prescribes how an oath should be administered, which is indicated as follows:

“The deponent shall sign the declaration in the presence of the Commissioner of Oaths.”

The matter was brought because the Applicant was infected with Covid-19, which made it virtually impossible for the Applicant to sign the affidavit in the presence of the Commissioner of Oaths.

To ensure compliance with the Act and the corresponding regulations, the Applicant deposed to the affidavit via a WhatsApp video call.

In reaching its decision, the Court had to decide whether substantial compliance with the Act and its regulations was significant.

The Court referred to the case of S v Munn, which held that the requirement of a person-to-person presence between a Commissioner and a deponent is not peremptory and could be relaxed in circumstances where there was substantial compliance with the requirements.

In addition to the case of Munn, the Court also referred to a judgment handed down by Judge Satchwell, in which it was allowed that a video link could be used to lead evidence from witnesses who were based overseas.

In this instance, the Judge virtually administered the Oath before evidence was allowed.

Based on these judgments, in the case of Bhana, the Court found that there was substantial compliance with Regulation 3(1) and accepted the affidavit as evidence.

In other similar cases, Justice Lenyai accepted a founding affidavit of an applicant who was infected with Covid-19 and could not be physically present to depose to the affidavit in the presence of a Commissioner of Oaths.

The Applicant, in this matter, proved that there was substantial compliance with the regulation.

By applying this judgment to particular situations where a deponent was unable to physically depose to an affidavit, it is imperative to note that there must be substantial compliance with the requirements of the Act.

However, what happens when one wishes to virtually commission an affidavit while inside the boundaries of South Africa. In this instance, guidance can be taken from the cases mentioned above, which indicate that:

The following steps should be taken to ensure substantial compliance with the Act and the Regulations:

1. An affidavit should be transmitted to the deponent via e-mail which the deponent then prints.

2. The deponent should then show their identity with suitable documentation, which should be presented to the Commissioner through a video call or link.

3. Once the deponent’s identity has been confirmed the Commissioner should then administer the Oath or affirmation on said call.

4. The deponent should next:

4.1 Sign and initial the relevant portions of the affidavit, which must then be sent to the Commissioner.

4.2 The Commissioner will print the affidavit, confirm that it is the same document signed in their presence via the video call, and then sign, initial, and stamp in the relevant sections of the affidavit.

The element of “Substantial Compliance” is crucial to ensure that the affidavit will be valid whether it is commissioned on behalf of a person who could not be physically present due to Covid-19 or because they are not in South Africa.

In doing so, a Commissioner of Oaths will still be required to verify the deponent’s identity, and the Oath or affirmation must still be administered to the deponent.

Based on the above-mentioned judgments, it stands to reason that, to add weight to one’s argument to accept an affidavit that was not deposed to in the presence of a commissioner, the Oath should be administered by way of a video call or link, preferably while it is recorded.

In addition, it has also been noted that a Commissioner overseeing the process should also depose to a separate affidavit providing a detailed explanation of the steps taken to ensure substantial compliance with the Act’s requirements and Regulations.

It’s important to be clear about the fact that this discussion is about an electronic data message and whether or not the ‘electronic’ part nullifies the evidentiary value of an electronically deposed and commissioned affidavit.

If data messages are accepted as evidence in a Court of law, then affidavits deposed in line with the requirements of section 12 of ECTA must also be regarded as having evidentiary value.

This is if the requirements of both ECTA, the Justices of the Peace, and the Commissioners of Oaths Act are met.

If the person giving the sworn statement confirms in the electronic presence of the Commissioner of Oaths, the veracity of the oath, and if they declare that it is binding on their conscience and there is no objection to them making the sworn statement, then for all practical purposes, said affidavit will be deemed valid.

Assumptions that the affidavit is flawed and less authentic owing to it being electronic are unproven.

The development of being obligated to merge the provisions of ECTA and the Justices of the Peace and Commissioners of Oaths Act during these unfamiliar times sets a model displaying the true adjustability of our legal system.

Be advised however that, regarding Signing, Attesting, and Execution of a Signature:

Despite AECTA making allowance for the electronic execution of documentation, in schedule 2 there is special reference to documentation that cannot be accomplished in electronic format. Those documents consist of:

• Wills and Codicils.

• Alienation of Immovable Property.

• Bills of Exchange; and

• Long Leases.

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Types Of Courts for Divorce and Family Law in South Africa

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