The act of commissioning is an act performed by a commissioner of oaths to verify the identity of a deponent to an affidavit and administer an oath to that effect.
The ability to remotely commission documents has become increasingly relevant given the technological platforms that can be employed to commission legal documents. But is remote commissioning via virtual platforms a real possibility?
The Justices of the Peace and Commissioners of Oaths Act No. 16 of 1963 (“Act”) serves as the cornerstone for commissioning practices in South Africa. Regulation 3(1) of the Regulations Governing the Administering of an Oath or Affirmation to the Act provides that “the deponent shall sign the declaration in the presence of the commissioner of oaths.” But what is meant by “in the presence of”?
Several court rulings have held that regulation 3(1) does not obligate a commissioner of oath to certify that an affidavit was signed in their physical presence. Put differently, regulation 3(1) does not explicitly state that an affidavit ought to be commissioned in the physical presence of a commissioner of oaths.
In the case of Knuttel NO and others v Bhana and others (2022) 2 All SA 201 (GJ), an application for eviction was brought before the Gauteng Local Division of the High Court. The deponent of the founding affidavit was infected with Covid-19 at the time of bringing the application to the court, wherein the affidavit was commissioned via a WhatsApp video call. The court was faced with the question of whether there was substantial compliance with the requirements for the commissioning of the founding affidavit. The court relied on a set precedent in the matter between S v Munn 1973 (3) SA 734 (NC) wherein the court established that the objective of obtaining a deponent’s signature to an affidavit is to obtain irrefutable evidence that the relevant deposition was indeed sworn to. The court in Munn, as reiterated in Knuttel, held that non-compliance with the regulations does not per se invalidate an affidavit in so far as there was substantial compliance with the formalities which gives effect to the purpose of obtaining the signature of the deponent to an affidavit. The court in Knuttel was thus satisfied with the WhatsApp video commissioning of the founding affidavit in so far as it substantially complied with regulation 3(1).
In the case of Tinashe v University of Limpopo (Turfloop Campus) (9938/2022) [2023] ZALMPPHC 57, Tinashe, a PhD student brought an application to review and set aside the respondent’s failure to release her thesis results. Tinashe argued that her founding and replying affidavits, although signed in Zimbabwe and commissioned in South Africa in her absence, were valid. The court’s decision hinged on whether Tinashe’s situation qualified as an exceptional circumstance that could excuse her non-compliance with regulation 3(1). The court held that the founding affidavit was non-compliant with the Regulations Governing the Administering of an Oath or Affirmation to the extent that her situation did not make-up for an exceptional or extraordinary circumstance.
Even though some court decisions suggest that regulation 3(1) might not be strictly mandatory, these regulations are generally considered as directory in nature, requiring substantial adherence thereto. It is worth noting that what constitutes substantial compliance is open-ended and is determined by courts on a case-by-case basis but can include commissioning via remote or virtual conferencing.
The burden of proof will however fall on the deponent of an affidavit that avers that their actions constitute ‘substantial compliance’ with regulation 3(1). This is particularly important because the regulation itself remains silent on the specific requirement of physical presence of both the deponent to an affidavit and the commissioner. This ambiguity allows for interpretation on a case-by-case basis where judges would have to exercise their discretion to determine whether a circumstance is exceptional or extraordinary to qualify as substantial compliance.
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