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ENSight

 

26 Oct 2021
BY Beverley Oosthuizen , Derek Wanblad AND Odwa Abraham

One step forward: Optimising the use of technology in the practice of law during COVID-19

Without any doubt, the wider use of technology in the practice of law has been accelerated by the changed landscape brought about by the COVID-19 global pandemic and associated lockdown regulations. This shift is evidenced in the judgment of the High Court , Gauteng Local Division in the case of Jennifer Ann Knuttel N.O. v Zobeida Shana. The respondents in this matter raised as a point in limine that the applicants’ founding affidavit failed to comply with the requirements of commissioning an affidavit in terms of the Regulations Governing the Administration of an Oath or Affirmation (“the Regulations”), as the deponent had not deposed to the affidavit in the physical presence of the commissioner of oaths, but rather had done so separately and taken the prescribed oath via a video call. The Regulations provide that a deponent to an affidavit is to depose to the affidavit “in the presence” of a commissioner of oaths, which the respondents alleged had not occurred in this matter.

The deponent to the affidavit had contracted the COVID-19 virus at the time and was in isolation. As such, she was unable to leave her home to depose to the affidavit in the physical presence of the commissioner of oaths, as ordinarily would have been done. As such, the applicants' attorney emailed an unsigned copy of the founding affidavit to the deponent, who initialled, signed, and returned the affidavit to her attorney by e-mail. An independent commissioner of oaths was engaged to speak with the deponent via a video call after the deponent had signed the affidavit, during which call the commissioner of oaths was able to identify the deponent to the affidavit and administer the prescribed oath. Having commissioned the affidavit in this manner, the applicant’s attorney filed an explanatory affidavit at court that set out the steps taken by him, the deponent and the commissioner of oaths in deposing to the affidavit. These steps, he contended, constituted substantial compliance with the requirements of the Regulations.

On consideration of the specific facts of the matter, the court held that non-compliance with the Regulations does not automatically invalidate an affidavit. There has been substantial compliance with the formalities laid out in the Regulations in such a way as to give effect to the purpose of obtaining a deponent’s signature. The court found that substantial compliance with the Regulations in this matter was met and that the affidavit had been validly deposed to by the deponent.

does the judgment constitute the development of the law?

The judgment is a seminal case arising from the COVID-19 lockdown periods in South Africa. It highlights what our courts will regard as substantial compliance with the requirement that a deponent to an affidavit be “in the physical presence” of a commissioner of oaths when deposing to an affidavit, provided:

  • the identity of the deponent that deposed to the affidavit is capable of being confirmed by the commissioner of oaths;
  • is able to answer the questions posed by the commissioner of oaths; and
  • take the prescribed oath.

This case is authority for the proposition that the purpose sought to be achieved by the requirement that the deponent be in the presence of a commissioner of oaths when deposing to an affidavit will have been met.

Substantial compliance with the Regulations will need to be demonstrated in a manner acceptable to the court in order to do away with the requirement that a deponent be in the physical presence of a commissioner of oaths when deposing to an affidavit. Special circumstances will need to be shown to exist that necessitate the deviation from the strict wording of the Regulations.

So, has the court refashioned and developed the law to reflect the ever-changing needs and circumstances of society, and if so, where to now? The court seems to have anticipated such questions and accordingly, clarified in its judgment that it is not developing the law, but is simply giving effect to the law as it has stood for many decades now. In this regard, the court referred to the case of S v Munn where the court found, as far back as 1973, that a commissioner of oaths is not required to be physically present with the deponent when the deponent signs an affidavit. The court further referred to instances when evidence has been lead via video conference where circumstances required it. The requirement that a deponent sign an affidavit or declaration in the physical presence of a commissioner of oaths is not peremptory in terms of the Regulations and can be relaxed on suitable proof being shown that there has been substantial compliance with the Regulations.

While the judgment certainly gives practical guidance where one is faced with similar circumstances, it also highlights that the use of technology in the practice of law is acceptable and is to be relied on without fear of reproach where circumstances require it. The optimal use of instant messaging and video conferencing technological advancements continue to redefine the practice of law and requires a "change of attitude" from modern legal practitioners, who are called on to assist clients in an ever changing landscape.

 

Derek Wanblad

Dispute Resolution | Executive

dwanblad@ENSafrica.com

+27 83 289 3950

 

Beverley Oosthuizen

Dispute Resolution | Senior Associate

boosthuizen@ENSafrica.com

+27 82 787 9906

 

Odwa Abraham

Dispute Resolution | Associate

oabraham@ENSafrica.com

+27 66 486 866