It cannot be disputed that the ongoing COVID-19 pandemic has pressurised the legal profession to re-examine and reconsider certain legal requirements. With the everchanging social climate that accompanies the new sense of normal, many constraints have been placed on certain legal formalities and regulations in South Africa.
The legal profession places heavy reliance on evidence being provided by means of an affidavit under oath. In accordance with reg 3(1) of the GN R1258 in GG3619/21-7-1972, when commissioning an affidavit, the deponent to the affidavit must depose to the affidavit in the physical presence of a Commissioner of Oaths (Commissioner). This regulation has been under much strain during the pandemic. A frequent occurrence is that the deponent to an affidavit cannot depose to the affidavit in the physical presence of the Commissioner due to the deponent being infected with the COVID-19 virus and consequently running the risk of infecting the Commissioner. Conversely, a deponent with comorbidities runs the risk of getting infected while attending the Commissioner’s office.
The legal question that this article aims to address with reference to the unreported decision of the Gauteng Local Division High Court in the case of Knuttel NO and Others v Shana and Others (GJ) (unreported case no 38683/2020, 27-8-2021) (Katzew AJ) is whether an affidavit can be commissioned virtually and what the implication of this judgment is on the legal profession at large.
‘Section 10(1)(b) of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, provides for the Minister of Justice to make regulations prescribing the form and way an oath or affirmation shall be administered, and a solemn or attested declaration shall be taken, when not prescribed by any other law. The regulations that were made by the Minister in this respect are the Regulations Governing the Administration of an Oath or Affirmation, which were published under GN R1258 in GG3619 of 21 July 1972 [the Regulations]’. In terms of reg 3(1), the deponent shall sign the declaration in the presence of the Commissioner.
In the matter of S v Munn 1973 (3) SA 734 (NC), the court held that ‘the purpose of obtaining the deponent’s signature to an affidavit is primarily to obtain irrefutable evidence that the relevant deposition was indeed sworn to’. The court further held that non-compliance with the regulations does not intrinsically invalidate an affidavit in that the regulations are mandatory in nature. Accordingly, ‘non-compliance with the regulations 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 a deponent’s signature to an affidavit’.
In Uramin (Incorporated in British Columbia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236 (GJ) judicial recognition was ‘given to the relaxation of the requirement of person-to-person presence for the administering of an oath’. Here, the court allowed video usage to ‘lead evidence in a civil matter from witnesses who were abroad’. Satchwell J administered the oath to the party virtually before their evidence was led.
The legal question before the court for purposes of this discussion was ‘whether there was substantial compliance with the requirements for the commissioning of the oath to the founding affidavit’. Here, the founding affidavit was not signed by the deponent in the presence of the Commissioner, which accordingly conflicts with the Regulations.
In this matter, the deponent to the founding affidavit was infected with the COVID-19 virus and was accordingly in isolation. The unsigned draft founding affidavit was e-mailed to the deponent, the first applicant, by their attorney of record whereby the instructions to the deponent were to read, initial and sign it before the deponent e-mailed it back to the attorney. The attorney then enlisted the services of an independent Commissioner. In the presence of the first applicant’s attorney, the Commissioner spoke to the first applicant by means of a WhatsApp video call. During this video call, the Commissioner ‘identified the first applicant as the person she professed to be, the Commissioner then posed the usual questions, before she administered the oath in the conventional way, except that the deponent’s initialling and signature had been appended’ before the video call had commenced.
The court, in determining this matter, looked at the legal position in the Munn case whereby the court held that the requirement of person-to-person ‘presence between a Commissioner and a deponent is not peremptory, and can be relaxed upon proof on the facts of substantial compliance with the requirement’.
The court then held that ‘the founding affidavit was sworn to by the first applicant in the prescribed manner, albeit not in the physical presence of the Commissioner’. The court further relied on the legal position set out in Uramin, whereby judicial recognition had been ‘given to the relaxation of the requirement of person-to-person presence for the administering of an oath’.
The court also referred to the Canadian decision of Rabbat et al v Nadon et al 2020 ONSC 2933 wherein the Ontario Superior Court of Justice permitted the virtual commissioning of affidavits given the restrictions in place due to COVID-19. Here, the court held that ‘any affidavit for use on the motion may be sworn electronically or by e-mail using any reasonable method by which the person commissioning the affidavit can be satisfied of the identity of the deponent, that the deponent has read and understood the contents of the affidavit and is solemnly swearing or affirming as the case may be. The deponent and the person commissioning the affidavit need not be physically in each other’s presence’.
Pursuant to the aforesaid legal position, the court concluded that there was substantial compliance with reg 3(1) in the commissioning of the founding affidavit and that the affidavit had, therefore, been validly deposed to by the deponent.
This judgment illustrates what the court will consider as substantial compliance with the regulation that the deponent to an affidavit must depose to an affidavit in the physical presence of a Commissioner provided that the identity of the deponent can be confirmed by the Commissioner, the deponent is capable of answering the questions asked by the Commissioner and that the deponent has taken the prescribed oath.
The reasoning adopted by the court in this matter is persuasive in nature albeit not binding on other divisions. Furthermore, it is important to highlight that the Gauteng Local Division, in this matter, did not participate in an exercise whereby they were developing the South African legal position. This position, as highlighted previously, was already trite in our law. The court was merely giving effect to the already existing law.
This judgment, therefore, serves as a practical guide to legal practitioners and the legal profession as a whole when faced with similar circumstances. Litigants, however, should not use this judgment as a precedent to wilfully ignore the requirements prescribed by the Regulations for the commissioning of affidavits. Where it poses great difficulty or even impossibility for litigants to comply with the Regulations, the courts should adopt this pragmatic approach.
The legal position set out and confirmed by the Gauteng Local Division High Court, comes as a relief during these pandemic times whereby it is almost impossible for individuals to physically attend before a Commissioner in order to avoid the spreading of the COVID-19 virus.
Robyn Snyman LLB (Stell) and Bukhobethu Matyeni LLB (UWC) are candidate legal practitioners at Herold Gie Attorneys in Cape Town.
This article was first published in De Rebus in 2022 (April) DR 14.
