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Is commissioning an oath virtually the future for South African courts?

Under South African laws, the commissioning of oaths is regulated in terms of the Justices of The Peace and Commissioners of Oaths Act, 1963. Commissioners of oaths are required to verify the identity of the person making the sworn statement, to ensure that the documents annexed to the affidavit or statement are true copies, and to lead the deponent or the person signing the statement in uttering the specified words when making the oath or affirmation.

Under normal circumstances, administering an oath usually happens in person. However, the COVID-19 pandemic, and the movement restrictions that were imposed in South Africa during the lockdown made administering an oath in person difficult.  

In Firstrand Bank Limited v Jacques Louis Briedenhann, the Eastern Cape High Court had to decide whether the Regulations Governing the Administering of an Oath or Affirmation of the Act permit the administration of an oath through a video conference using an internet-based digital video conference platform.

The Regulations state that “the deponent shall sign the declaration in the presence of the commissioner of oaths” (our emphasis added).

The crux of the matter was whether the digital or remote commissioning of affidavits for use in court proceedings complied with the Regulations.

The facts of the case are as follows:

  • the plaintiff had issued summons to the defendant for payment of a loan, together with interest on that amount and costs;
  • the defendant did not file a notice to defend the action, and the plaintiff applied for default judgment with the registrar of the court; and
  • the matter was referred to the High Court, where the judge became aware of the fact that the affidavit filed had been signed by the deponent using an electronic signature and had been commissioned by way of virtual conference.

In interpreting the meaning of “in the presence of”, the court based its conclusion on the meaning based on the plain meaning of the phrase. The court held that, “the expression ‘in the presence of’ within its context in regulation 3(1), requires that the deponent to an affidavit takes the oath and signs the declaration in physical proximity to the commissioner. The regulation does not therefore cover such deposition in the ‘virtual presence’ of a commissioner”.

ECTA

In deciding the case, the court considered the Electronic Communications and Transactions Act, 2002 (“ECTA”), which states that:

“(1) Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used.

(2) Subject to subsection (1), an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form.”

ECTA provides that “where a law requires a signature, statement or document to be notarised, acknowledged, verified or made under oath, that requirement is met if the advanced electronic signature of the person authorised to perform those acts is attached to, incorporated in or logically associated with the electronic signature or data message” (our emphasis included).

In considering these provisions, the court stated that the use of digital affidavits and electronic signatures for the signature of such affidavits is permitted. However, the use remains subject to the manner of deposition that is prescribed in the Regulations. Moreover, the court indicated that the use of digital affidavits and electronic signatures was not the legal issue at hand, and the question of whether administering an oath virtually was not covered under ECTA.

The directory nature of the Regulations and the question of substantial compliance

In deciding this matter, the court considered the case of S v Munn, where the court held that that where an affidavit has not been properly commissioned, “it may still be valid provided there has been substantial compliance with the formalities in such a way as to give effect to the purpose of the legislator as outline above”.

In R v Sopete, the court held that the nature of the Regulations was directory. However, it was pointed out that just because the Regulations are directory, it does not give deponents a chance to deviate from them. Instead, this gives the courts a discretionary role in determining whether there was substantial compliance with the Regulations where the administering of an oath has not complied with the Regulations. The question of substantial compliance is a factual issue that is determined on a case-by-case basis.

In determining whether the virtual commissioning of oaths by the plaintiff indicated that there was substantial compliance with the Regulations, the court took into account the motive of the plaintiff for using the platform and that the plaintiff had acted in good faith when doing so. The court found that the affidavit deposed to via video conferencing complied in substance with the purpose and provisions of the Regulations and the affidavit was accepted by the court.

The COVID-19 pandemic has introduced innovative technologies that are beneficial and practical for ensuring continuity with legal processes. Despite the advantages of using these technologies, one cannot circumvent the legal and regulatory requirements that govern certain legal processes. It is therefore advisable to procure legal advice before making use of new technologies in order to ensure that the technology that is going to be deployed complies with the law.

At ENSafrica, we are able to provide legal and regulatory compliance advice on the procurement and use of new technologies.

Rakhee Dullabh

Corporate Commercial | Executive

rdullabh@ENSafrica.com 

Naledi Ramoabi

Corporate Commercial | Candidate Legal Practitioner

nramoabi@ENSafrica.com