Lize de la Harpe – Senior Legal Advisor at Sanlam

IS IT NOT TIME FOR OUR LAW TO MAKE PROVISION FOR THE DEPOSITION OF AN AFFIDAVIT VIRTUALLY?

Introduction

The Covid pandemic impacted every one of us – lawyers and clients alike. Overnight the world was more reliant on the internet than ever before, yet parties to litigation remained bound to paper-based processes. This landed the legal industry in a peculiar situation – what are the options when you or your client must depose an affidavit, but the deponent has Covid and/or is in isolation?

Its three years later and the pandemic is safely behind us, but our ways of work has forever changed.  Is it not time to relax some of those very same laws that frustrated the court processes during lockdown? In particular, is it not time for our law to make provision for the deposition of an affidavit virtually?

The law

The Justices of the Peace and Commissioners of Oaths Act, 1963 (“the Act”) regulates Commissioners of Oaths. 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 (published under GN 1258) Governing the Administration of an Oath or Affirmation of 1972 stipulates that a 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.

Case law

The unreported case of Knuttel N.N.O. and Others v Bhana and Others (38683 of 2020) [2021] ZAGPJHC 500 (27 August 2021) 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 COVID19, 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.

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 per se 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).

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.

Conclusion

The Justices of the Peace and Commissioners of Oaths Act, 1963 was drafted over 60 years ago in a time where the internet was unfathomable as walking on the moon – and it has not been amended since 1999, despite the world becoming more and more digitalized.

The court in the Knuttel-case discussed above made it very clear that its decision to accept the founding affidavit as valid was 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 – it did not constitute a development of the law. As such, law as it currently stands continues to apply.

Has the time not arrived to revisit the Regulations and the requirement to depose an affidavit in the presence of the Commissioner of Oaths? Especially considering the fact that the Electronic Communications and Transactions Act, 25 of 2002 gave formal recognition to electronic signatures in South Africa over 20 years ago already.

One can only hope that the legislature will revisit the Regulations and bring it more in line with the everchanging fast paced world.

ENDS