Introduction
The third industrial revolution wanes in the rapid wake of the fourth, however, notwithstanding our advanced technological ecosystems overarching the majority of our daily decisions, only recently has the ability to commission your documents virtually become an acceptable practice. This article aims to provide you with a brief overview of the legislative framework and case law precedent surrounding the administering of an Oath or Affirmation electronically and not in the physical presence of a Commissioner.
The Justices of Peace and Commissioners of Oaths Act 16 of 1963
The Justices of Peace and Commissioners of Oaths Act 16 of 1963 (as amended) (the Act) sets out the governing laws in respect of, inter alia, the powers and duties of Justices of the Peace and Commissioners of Oaths (Justices / Commissioners). In terms of section 10 of the Act, the Minister of Justice is empowered to make regulations pertaining to the manner, form, and circumstances in which an oath or affirmation shall be administered.[1] In accordance herewith, the Minister of Justice gazetted regulation GNR 1258 on 21 July 1972. Of particular relevance is Regulation 3(1) which requires that a deponent be in the presence of a Commissioner when signing the relevant document – but what does it mean to be “in the presence of”, especially in this day and age?
Case Law and Virtual Commissioning of Affidavits
This exact question has been brought to the fore in both Maluleke v JR Investments (Pty) Ltd[2] (Maluleke) and Knuttel NO v Bhana[3] (Knuttel). It is trite that application technology, such as MS Teams, Zoom, Skye, Whatsapp and Google Meet, has afforded us the opportunity to connect with people without having to physically be in attendance. The notion of remote working and virtual meetings became ubiquitous as a result of the Covid19 pandemic, and thanks to the Maluleke and Knuttel judgments the notion of virtual commissioning is now a tenable method of administering an oath.
Both Maluleke and Knuttel relied on the precedent set in a much earlier judgment, S v Munn[4], wherein the court held that regulations issued in terms of the Act are directory only and non-compliance would 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 the deponent’s signature to the affidavit. [5]
The Maluleke matter dealt with the validity of an affidavit which was signed by the deponent, who had tested positive for covid19 and was in self-isolation, and then returned to his attorney for commissioning. The attorney has provided the client with advice via email and telephonic correspondence, of which the client accepted and understood, and the affidavit was consequently commissioned without the deponent attending the commissioner’s office physically. The attorney satisfied the court of the reasonable steps taken to ensure considerable compliance, given the circumstances, with the Act and its Regulations, particularly Regulation 2[6] which sets of the procedure for taking and administering an oath and Regulation 3(1) as noted earlier.
In the Knuttel matter, which was factually similar to that of the Maluleke matter, the deponent was unable to physically attend a commissioner’s office due to testing positive for Covid19. His attorney instructed him to initial and sign the relevant affidavit, return same to him via email, and then join a WhatsApp video call with a Commissioner of Oaths to make an oath in terms of Regulation 2 as well as to comply with Regulation 3(1), albeit, in the virtual presence of the commissioner.
In both of the above cases, the presiding judges confirmed the precedent as set out in S v Munn and in exercising their discretion, confirmed that the respective processes followed had met the threshold for substantive compliance of formalities and that ultimately the commissioners had fulfilled their statutory and regulatory obligations.
Conclusion
For all intents and purposes, it is evident that the meaning of “in the presence of”, insofar as the signing and administering of an oath is required for the commissioning of a document, includes both physical and virtual presence. This revelation is long overdue in the face of the omnipresent digital and electronic environment which rules our day-to-day lives.
At LHL we pride ourselves on keeping abreast of industry developments, and accordingly, we have adopted the “virtual commissioning” approach where such a process would be prudent to expedite our client’s rights and interests.
[1] Justices of Peace and Commissioners of Oaths Act 16 of 1963 (as amended) (the Act) at sections 10 (b) and (c).
[2] 2022 JDR 0131 (GP) (Maluleke).
[3] [2022] 2 All SA 201 (GJ) (Knuttel).
[4] 1973 (3) SA 734 (NC) (Munn).
[5] See: Munn at para 734H; Maluleke at para 14, and; Knuttel at para 53.
[6] Regulation 2 (1) – ‘Before a commissioner of oaths administers to any person the oath or affirmation prescribed by regulation 1 he shall ask the deponent— (a) whether he knows and understands the contents of the declaration; (b) whether he has any objection to taking the prescribed oath; and (c) whether he considers the prescribed oath to be binding on his conscience.’
Regulation 2 (2) – ‘If the deponent acknowledges that he knows and understands the contents of the declaration and informs the commissioner of oaths that he does not have any objection to taking the oath and that he considers it to be binding on his conscience the commissioner of oaths shall administer the oath prescribed by regulation 1 (1)’.
Regulation 2 (3) – ‘If the deponent acknowledges that he knows and understands the contents of the declaration but objects to taking the oath or informs the commissioner of oaths that he does not consider the oath to be binding on his conscience the commissioner of oaths shall administer the affirmation prescribed by regulation 1 (2).’