The Covid pandemic impacted every one of us. Lockdown not only forced us to rethink many aspects of how we work, but also made us more reliant on the internet (and online ways of work) than ever before.
Although we, as an industry, may have adapted fairly quickly (as the saying goes: necessity is the mother of invention!), one thing remains certain – the law has never been known for its agility, which left the legal industry (and public alike) with a peculiar situation during lockdown: what are your options when you must depose an affidavit, but the deponent has Covid and/or is in isolation? Does our law cater for deposing an affidavit virtually?
The short answer is “no”, but in this article I will recap on the applicable law and then take a look at a recent judgment where the judges made an exception based on a unique set of facts.
Justices of the Peace and Commissioners of Oaths Act, 1963
The Justices of the Peace and Commissioners of Oaths Act, 1963 (“the Act”) sets out who can act as commissioners of oaths and also sets out their powers. The role of a Commissioner of Oaths is to assist members of the community by administering an oath or taking a declaration from any person and to certify copies of documents as true copies of originals.
The Act states that the Minister of Justice may make Regulations prescribing the form and manner in which an oath (or affirmation) must be administered when not prescribed by any other law. All affidavits must therefore meet the requirements as set out in the Regulations promulgated in terms of the Act.
Regulation 3(1) of the Regulations Governing the Administration of an Oath or Affirmation of 1972 stipulates that:
“3(1) The deponent shall sign the declaration in the presence of the commissioner of oaths.” (my emphasis)
As we can see from the wording of Regulation 3(1), the deponent is required to sign the statement in the presence of the commissioner of oaths. Non-compliance with this requirement does not automatically invalidate an affidavit if there was substantial compliance with the formalities in such a way as to give effect to the purpose of obtaining a deponent’s signature to an affidavit.
Knuttel N.N.O. and Others v Bhana and Others (38683 of 2020)  ZAGPJHC 500 (27 August 2021)
The unreported case of Knuttel v Bhana dealt with an application by the trustees of a trust who wanted to evict a tenant from a property owned by the trust. One of the issues that the court had to consider was whether there had been substantial compliance with the requirements for the commissioning of the oath in respect of the founding affidavit.
At the time of deposing to the founding affidavit, the deponent was infected with COVID-19, which made it impossible for her to sign the founding affidavit in the presence of the Commissioner of Oaths. The applicants’ attorney therefore arranged for the deponent to sign the founding affidavit via email and then engaged the services of a Commissioner of Oaths who in the presence of the applicant’s attorneys, spoke to her via a WhatsApp video call. The applicants’ attorney gave a detailed account (in an affidavit) of the measures taken by him and the deponent to satisfy the Commissioner of Oaths that the counterpart in the WhatsApp video call was the deponent. The respondents however contested that the founding affidavit was invalid as it was not signed by the deponent in the physical presence of a Commissioner of Oaths as required in terms of the Regulations Governing the Administration of an Oath or Affirmation.
The court referred to the judgment of S v Munn 1973 (3) SA 736 (NCD) where the full bench confirmed that non-compliance with these regulations does not invalidate an affidavit if there was substantial compliance with the formalities in such a way as to give effect to the purpose* of obtaining a deponent’s signature to an affidavit (*the purpose of obtaining the deponent’s signature to an affidavit is primarily to obtain undisputable evidence that the deposition was indeed sworn to). Put differently: the requirement to appear in front of the commissioner can be relaxed if you can prove that there has been substantial compliance with the requirement.
Taking this into consideration, the court, after examining the extraordinary steps taken to commission the founding affidavit, as well as the surrounding circumstances related to COVID-19, ruled that there had been substantial compliance with regulation 3(1) of the Regulations Governing the Administration of an Oath or Affirmation. As such, the founding affidavit was held to be valid, and the case could proceed.
It is vital to read the Knuttel-case in the correct context – the court made it very clear that its decision to accept the founding affidavit as valid did not constitute a development of the law. Itwas merely a relaxation of the requirement that the deponent must be in the presence of the commissioner when signing the affidavit, based on the extraordinary circumstances of this case.
Put differently: having regard to the unique circumstances of this particular case, the court was convinced that there was substantial compliance with the regulation that the deponent to an affidavit must depose to an affidavit in the physical presence of a Commissioner.
The current legal position thus remains that all deponents have to appear physically before a Commissioner of Oaths when deposing to an affidavit. However, there may be circumstances which could substantiate deposing an affidavit virtually (as long as there is still substantial compliance with the formalities in such a way as to give effect to the purpose of obtaining a deponent’s signature to an affidavit) – but it will not be without risk.
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