THE VIRTUAL AGE AND COMMISSIONING OF AFFIDAVITS

Justice of the Peace and Commissioners of Oath Act  

The effect of the regulations governing the administration of an oath or affirmation (the “regulations”) promulgated in terms of the Justices of the Peace and Commissioners of Oath Act 16 of 1963 (the “Act”) have recently come into the spotlight again in our courts. According to the regulations, a deponent is required to sign the declaration in the presence of the commissioner of oaths, and below the deponent’s signature or mark, the commissioner of oaths is required to certify that the deponent has acknowledged that s/he knows and understands the contents of the declaration. Although the wording and directions to deponents seem clear, the interpretation of the phrase ‘‘in the presence of’’ has proven contentious in past judgments.  

LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services  

The high court in LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services 2024 ZAGPPHC 446 considered the question of whether the meaning of the phrase ‘‘in the presence of’’ could be developed to include commissioning by virtual means. In this case, the applicant sought an order confirming that the phrase “in the presence of” contained in regulation 3 to the Act should be broadly interpreted to include the administration of an oath or affirmation by means of live electronic communication consisting of simultaneous audio and visual components. In support of its application, the applicant argued that the purpose of the Act and the said regulation are to ensure that the commissioner of oaths is able to view the deponent’s identity document in order to verify the deponent’s identity. The applicant argued that verifying the deponent’s identity and confirming that the deponent knows and understands the contents of the declaration, can be done virtually. Accordingly, the applicant argued, the purpose of the Act and the regulations could be achieved despite the commissioner of oaths and the deponent not being in each other’s physical presence. 

Read the case here: 

https://www.saflii.org/za/cases/ZAGPPHC/2024/446.html 

In unpacking the court’s decision in this case, it is important to first understand the legal weight the regulations to the Act carry. The court in Knuttle N.O. and others v Bhana and others 2002 All SA 201 (GJ) relying on S v Munn 1973 4 All SA 96 (NC), held that the regulations were directory and not peremptory and that a court has a discretion to allow an affidavit into evidence if there is substantial compliance with the regulations. 

In Knuttle, the respondents raised a point in limine that the applicant’s affidavit was commissioned by virtual means, and as such, did not comply with the regulations. The applicant’s attorney explained that the deponent had been stricken with Covid-19 and comprehensively set out the steps which had been taken to comply with the regulations, as far as possible. The affidavits were accepted into evidence considering that there had been substantial compliance with the regulations. 

Acceptance despite non-compliance 

Similarly, in the case of ED Food S.R.L and Africa’s Best (Pty) Limited 2022 ZAGPJHC 1619, a challenge was raised by the respondent on the ground that the affidavits were commissioned by virtual means and, therefore, not in the presence of the commissioner of oaths. The court examined the affidavit presented by the applicant which detailed the steps it had taken to satisfy itself as to the identity of the deponent which included requesting the deponents to show their identity documents over the live video and to send the signed documents immediately to the commissioner once they had been signed so the commissioner could apply its own signature and stamp. In this case, the court found that there had been substantial compliance with the regulations and accordingly accepted the affidavits. It furthermore agreed that courts need to be open to the modern trend of technology but cautioned that such a tendency would not necessarily equate to the courts ‘‘willy nilly accepting non-compliance with acts and regulations’’, and that there had to be substantial compliance with both the Act and the regulations. 

The court in the LexisNexis case distinguished the Knuttle and ED Foods cases from the case before it. In Knuttle and ED Foods, the courts were asked to accept the affidavits on the basis that there was substantial compliance with the regulations, notwithstanding that they were commissioned by virtual means. These cases stand in stark contrast to the Lexis Nexis case where the applicant asked the court to declare that regulation 3 be broadly interpreted in order that the phrase “in the presence of”, in the context of commissioning an affidavit, includes commissioning via virtual means and thus, an affidavit commissioned virtually, conformed with the requirements of regulation 3.   

Turning to the interpretation of the words “in the presence of”, the court noted that all dictionaries consulted defined the words in relation to physical presence. The court then referred to the case of Firstrand Bank Ltd v Briedenhann 2022 (5) SA 215, which, referring to Gulyas v Minister of Law and Order 1986 (3) SA 934 (C), held that “presence” meant immediate proximity.  

“In the presence of”  

Accordingly, in deciding whether the phrase “in the presence of” should be broadly interpreted to include the administration of an oath or affirmation by means of live electronic communication, the court referred to Natal Joint Municipal Pension Fund v Endumeni Municipality, the authoritative judgment on interpretation in our courts. In this judgment, the court, in declining to ascribe a broad interpretation, as requested, noted that:  

“[i]nterpretation is the process of attributing meaning to the words used in a document… Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed, and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in light of these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible, or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.’’ 

The court in the LexisNexis case noted that the purpose of a judge when tasked with interpreting a statute or document is to ascertain the objective meaning of the words used within the context of the document. The judge furthermore agreed with the court in the case of Natal Joint Municipality Pension Fund, which stated that “[t]he language of Regulation 3(1) when read in the context of the Regulations as a whole, suggest that the deponent is required to append their signature to the declaration in the physical presence or proximity of the commissioner. This accords with the concern for place, insofar as the exercise of the authority to administer the oath is concerned, as appears from the Act”, noting that the wording of the regulation does not allow for any other interpretation. In light of the above, the court in the Lexis Nexis case dismissed the applicant’s application, ruling that the phrase “in the presence of” could not be broadly interpreted to include commissioning by virtual means. 

Leave to Appeal  

It is important to recognise the difference between requesting the court to condone or accept an affidavit where the regulations have been substantially complied with, on the one hand, and requesting a court to ascribe meaning to a phrase which does not accord with the language used in the Act or regulations, on the other. In the case of the former, the court is well inclined and empowered to grant such orders of compliance, whereas in the latter case the court would be forced to traverse into the realm of the legislature and effectively usurp the function of that body. This the court may not do, as to do so would be tantamount to a violation of the delicate balance to be maintained in the separation of the powers of the judiciary, the legislature and the executive. Given that regulations are directory and not peremptory, a court has the discretion to allow an affidavit, which has been commissioned by virtual means, into evidence, provided that there is substantial compliance with the regulations. 

Lexis Nexis applied for leave to appeal to the high court, however its application was dismissed. The court in its judgment noted that in interpreting documents, “the interpreter is tasked with finding the meaning of the words used, given the context and purpose within which they were written and the ‘circumstances attendant upon its coming into existence’ “. The court further noted that the Regulations were written when no one conceived the possibility of communicating through the internet and that a purposive approach, being one where the meaning of words can be read to ascribe various meanings including those which are in line with modern times, is only possible when the language used lets the interpreter down, which is not the case in respect of regulation 3. The court reiterated that the fact that technology has developed to the extent it has, does not detract from the original meaning of the words, being physical presence. The court instead noted that it is for the legislature to amend the wording of the Regulations if it is of the view that an amendment is required. 

Conclusion 

In our view, replacing the phrase “in the presence of” with the word “before” could be enough to bring the regulations in line with modern technological advancements of commissioning by virtual means. Schedule 2 of the Constitution of the Republic of South Africa, in respect of the swearing in of judicial offices, requires each judge or acting judge to swear or affirm before the Chief Justice or another judge designated by the Chief Justice that as a judge of the particular court, he or she “will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”. The court in the Lexis Nexis case touched on this point and emphasized that the use of the word “before” in Schedule 2 of the Constitution does not require the judge or acting judge to be in the presence of the person administering the oath. Therefore, if the phrase “in the presence of” was replaced with the word “before”, an affidavit that was commissioned by virtual means would comply with the regulations, subject, of course, to any other requirements the legislature may prescribe to satisfy itself that the person making the oath or affirmation is the person signing the affidavit.  

Until such time as the regulations are amended however, the legal position remains clear. Courts are inclined to accept affidavits that have been virtually commissioned, provided that there has been substantial compliance with the regulations.