In a number of recent cases there has been a question whether the commissioning of affidavits can be done remotely / virtually. The Justices of the Peace and Commissioners of Oath Act No. 16 of 1963 governs the appointment and the powers of commissioners of oath, while the procedures to administer the oath are contained in the Regulations that accompany the Act.
The regulations specifically state in section 3(1) that the deponent or the person signing the affidavit, shall sign in the presence of the Commissioner. The commissioner must then state the manner, place and date of the taking of the declaration.
The Pretoria High Court had accepted the virtual / remote commissioning of an affidavit in the matter of Knuttel N.O. and Others v Bhana and Others. In this matter the deponent had been ill with Covid and could not attend at the commissioner’s office to take the oath. His attorney had set out in great detail the steps that they had taken to comply as far as possible with the regulations. In this instance the court accepted the affidavit, having found that there had been substantial compliance with the regulations.
A subsequent case of Firstrand Bank Ltd v Briedenhann also dealt with this issue, but found that the interpretation of “ in the presence of ” as contained in the regulations, means in the physical presence of a commissioner. The Court did however exercise its discretion in accepting the affidavit, but made it clear that it could only consider it on a case by case basis, and that the deponent could not elect to commission an affidavit virtually because of convenience.
Following this judgment two more judgments have been made in support of the virtual commissioning of affidavits.
In ED Food v Africa’s Best the deponents were in Italy and their affidavits virtually commissioned due to the urgency of the matter. The court had accepted this as an explanation and indicated that to commission in the physical presence of a commissioner was a hurdle to the speedy administration of justice.
In a very recent judgment of VJS v SH (Case Nr: 19578/2024) the court again accepted an affidavit that was commissioned virtually during a Zoom video call. Th Court found that non-compliance with the regulations did not invalidate an affidavit, but that there was substantial compliance in this instance. The Court furthermore called for the amendment of the regulation to bring them in line with the modern position of signing and commissioning of affidavits.
While the judgments do suggest that the remote/virtual commissioning of affidavits is acceptable, the law has remained unchanged, and the court will exercise its discretion on a case by case basis, and a deponent has no guarantee that his affidavit will be accepted if not commissioned in the presence of a commissioner of oath.
It is therefore best to err on the side of caution and rather sign and commission an affidavit in the presence of a commissioner. It is also important to remember that a commissioner of oath cannot charge a fee for commissioning an affidavit.
Any attorney that doesn’t have a personal interest in the matter may commission an affidavit as well the SAPS. If intending to approach an attorney to assist it is however advisable to contact their offices ahead of time to ensure that someone is available.
