There have been numerous court decisions dealing with electronically commissioning affidavits. This article will explore a few cases, where the Court held, regardless of an electronically commissioned affidavit, there had been substantial compliance with the Regulations Governing the Administering of an Oath or Affirmation (“Regulations”) under the Justices of the Peace Commissioners of Oaths Act, 16 of 1963 (“Act”). Thereafter, the Supreme Court of Appeal judgment in the LexisNexis South Africa (Pty) Ltd v Minister of Justice and Constitutional Development case will be discussed.
High Court Cases
In Knuttel N.O. v Bhana the High Court held that an affidavit signed during a WhatsApp video call constituted substantial compliance with the Regulations. This case had special circumstances, as 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 had arranged for the deponent to sign the Founding Affidavit during a WhatsApp video call with the Commissioner of Oaths. The applicants’ attorney gave a first-hand 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 Court held that the steps taken to satisfy the Commissioner of Oaths as to the identity of the deponent, together with all the other precautionary measures testified to, constituted substantial compliance with the Regulations.
In E D Foods SRL v Africa’s Best (Pty) Ltd the High Court held that an affidavit signed during a video conference call constituted substantial compliance with the Regulations.
In this matter the Founding and Confirmatory affidavits were commissioned via video conference call as the deponents were in Italy, and the Commissioner of Oaths was in the Republic of South Africa. The Commissioner of Oaths presented an affidavit setting out the process he undertook to verify the identity of each deponent and the confirmation sought from the deponents that they knew and understood the contents of the affidavits, had no objection to taking the prescribed oath and that they considered the oath binding on their conscience.
In Firstrand Bank Ltd v Briedenhann the High Court held that an affidavit signed during a video conference call constituted substantial compliance with the Regulations. The affidavit was signed by the deponent utilising an electronic signature and had been commissioned by way of virtual conference. The plaintiff utilised the LexisSign digital platform for the signing and commissioning of its affidavit.
The Court held that the plain meaning of the expression ‘in the presence of’ within the Regulations, requires that the deponent to an affidavit takes the oath and signs the declaration in the physical presence or proximity to the commissioner. The Regulation does not cover such deposition in the ‘virtual presence’ of a commissioner.
The Court has a discretion, which must be exercised judicially, upon consideration of all the relevant facts and in the interests of justice, as to whether there has been substantial compliance with the Regulations. The Court held that there can be no doubt that the evidence placed before the Court establishes that the purposes of the Regulations have been met. “To refuse to admit the affidavits would, of course, highlight the importance of adhering to the principle of the rule of law. To require the plaintiff to commence its application for default judgment afresh upon affidavits which would contain the same allegations, but which are signed in the presence of a commissioner of oaths would not, in my view, be in the interests of justice. There is after all no doubt that the deponents did take the prescribed oath and that they affirmed doing so. It would therefore serve no purpose other than to delay the finalisation of this matter with an inevitable escalation of costs, not to receive the affidavits.”
These judgments clearly assist in the interpretation of the Regulations and what the Court would deem substantial compliance. Courts can exercise authority to regulate their own procedures in the interests of justice and where they have rule making powers, novel or innovative adaptations can be made. The use of video-based hearings to conduct proceedings during the National State of Disaster is a case in point. Regardless of the Court’s authority, the Regulations are not subject to court-based rule making powers.
Supreme Court of Appeal case
Background
Lexis Nexis South Africa (Pty) Ltd (“LNSA”) developed a secure web-based platform LexisSign, facilitating the electronic signature of various legal documents, including commissioning of affidavits in the presence of a commissioner.
The law provides for a deponent to sign a declaration “in the presence of” a Commissioner of Oaths. Following a series of High Court decisions, which confirmed that the requirement that a deponent shall sign “in the presence of” a Commissioner of Oaths means physical presence or proximity of the Commissioner, uncertainty arose among users of the platform.
High Court
To address growing doubt, LNSA approached the High Court asking it to declare that remote commissioning meets the requirements of the Regulations In LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services, LNSA sought declaratory relief to read in the Regulations that the words “in the presence of” must be broadly interpreted to “include the administering of an oath or affirmation, including the signing of a written declaration, by means of live electronic communication, consisting of simultaneous audio-and-visual components”.
The High Court rejected LNSA’s reading in and found that the current wording of the Regulations did not admit an alternative interpretation.
Supreme Court of Appeal
In LexisNexis South Africa (Pty) Ltd v Minister of Justice and Constitutional Development, the SCA was approached to determine whether the High Court erred in following the Firstrand Bank Ltd v Briedenhann case in ‘in the presence of’ means that the affidavit must be signed in the physical presence or proximity to the commissioner.
LNSA argued that trials are conducted via audio-visual platforms, in which case the oath is taken by a witness on the platform rather than in the presence of the Commissioner of Oaths. As a result of this, LNSA contends that the Regulations should be interpreted broadly to permit the administering of the oath for an affidavit via an audio-visual link.
The Court reaffirmed that affidavits signed by the deponent in the presence of a Commissioner of Oath acts as a guarantee to the Court that the oath was understood and accepted by the deponent. The Court held that an alternative method of administering the oath for affidavit purposes, would have to serve the same purpose. Should this be granted, there will be numerous unidentified audio-visual platforms being used to administer oaths, with no evidence of the safeguards, or lack thereof.
Changes to the Regulations must be effected through a legislative process as the Act confers regulatory power on the Minister to make new regulations governing the taking of the oath and signature of written declarations.
The Court distinguished the relief sought by LNSA and what could have been sought by LNSA. LNSA did not seek an order that it’s LexisSign platform, when used, would constitute substantial compliance with the Regulations. LNSA sought to read in that an affidavit that must be signed in the presence of the Commissioner of Oaths should include the administering an oath or affirmation, including the signing of a written declaration, by means of live electronic communication, consisting of simultaneous audio-and-visual components.
The Court held that declaratory relief is only available where a party can show a direct legal interest in an existing, future or contingent right or obligation. LNSA was not facing litigation, enforcement action or regulatory threat. LNSA’s application sought clarity for commercial and operational reasons, specifically to reassure customers that its platform was legally compliant. The Court held that these reasons did not pertain to any legal right or obligation to which the order will relate.
The Court also found that there was no genuine legal uncertainty to resolve. The High Courts have already consistently interpreted the Regulations as requiring physical presence, subject only to substantial compliance.
The Court held that the LNSA failed to establish that its application engaged the High Court’s jurisdiction to grant declaratory relief. Even if the High Court had the power to do so, this is not an appropriate case in which it would have been proper to grant the declarations sought. Accordingly, the appeal was dismissed.
Significance of the judgment
This judgment is significant not because it refuses technological advancement, but because it reaffirms South Africa’s commitment to legal certainty. Affidavits remain fundamental to civil and criminal litigation, regulatory compliance and commercial transactions. Their evidentiary value depends on strict adherence to the prescribed formalities designed to prevent fraud, coercion and abuse. Those safeguards cannot be relaxed through judicial interpretation alone.
For law firms, businesses and legal technology providers, the message is clear: innovation must operate within the existing legal framework until/if that framework is legally amended. Where the law no longer reflects modern practice, the appropriate remedy is regulatory or legislative reform, not litigation designed to change the meaning of clear legal rules.
