During the litigation process, when an affidavit (or written statement) is made by an individual, under oath, declaring that the information they are providing the Court is true and accurate, South African law requires that this must be signed in the presence of a Commissioner of Oaths to be legally binding.
However, in the current world we live in where physical presence has been aided, and to some means substituted by technology, virtual commissioning (via Zoom, Microsoft Teams or Google Meets) has become a reality which the South African judicial system has had to deal with. In turn, it has also become a topic of heated debate among various judges and legal practitioners in recent years.
Due to the formalities for deposing an affidavit, as prescribed by the Justice of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act) and the Regulations Governing the Administration of an Oath or Affirmation (the Regulations), an opposing party could potentially argue that an affidavit commissioned away from the physical presence of a commissioner is not legally compliant.
If such a legal argument succeeds, the affidavit could be treated as not valid by the relevant Court, essentially nullifying any potential defence or claims raised in that document.
While the courts still view the requirements of both the Act and Regulations as binding, despite its archaic nature in light of the predominance of virtual proceedings in other jurisdictions, we are also seeing the increased adoption of a stance that favours a more liberal interpretation of the applicable Act and Regulations despite the potential argument raised in some recent cases stating that it is not for the court to develop legislation (the jurisdiction of the legislature according to the doctrine of the Separation of Powers).
In the matter of Knuttel NO and Others v Shana and Others (2021), the Court considered whether an affidavit commissioned virtually - due to the deponent having contracted Covid-19 - would be deemed compliant in terms of the Act. Having considered all the relevant factors, the Court concluded that there had been substantial compliance when commissioning the affidavit and it was determined to have been validly deposed.
In the 2022 case of ED Food v Africa’s Best Foods, the Court once again addressed the issue of whether affidavits deposed via video conferencing complied with legal requirements. In this case, the Court relied on previous judgements such as Liebenberg N.O. and Others v Bergrivier Municipality (2013) (CC) and Uramin t/a Areva Resources Southern Africa v Perie (2017) to justify its reasoning that courts should adapt to the modern trend of technology. The Court ultimately held that given the circumstances surrounding the case, there was substantial compliance with the Act and Regulations and therefore determined that such affidavits, although technically not compliant, would be accepted.
And most recently, in the case of VJS v SH (2024), a similar situation arose in which the Court considered whether an affidavit, which had been virtually deposed to, could be considered compliant in terms of the Act. Notably, the judge stated in the ruling that although cases such as S v Munn (1973) justify the requirement of physical presence as necessary to ensure that the witness fully understands the solemnity of the act they are performing, the principle remains the same whether the witness participates virtually or through an audio-visual link. The judge in this case highlighted the premise that the applicable Act was passed over 60 years ago when video conferencing and the internet were not yet envisaged. The Court further reiterated that the modernisation of the civil litigation process within South Africa would provide several advantages including reduced costs, the prevention of unreasonable delays and the quicker resolution of cases. In closing, the Court called for the applicable Regulations to be amended to bring them in line with modern technology trends by allowing the electronic signing and commissioning of affidavits.
The courts' willingness to interpret the Act and Regulations with flexibility is a welcome development by some, as adopting a more modern approach to commissioning affidavits could provide many multi-national businesses, who frequently litigate in South Africa, a more time efficient and simplified means of deposing affidavits. For example, one cannot deny there would be a reduction of costs usually associated with the laborious process of commissioning. It could further potentially prevent unreasonable delays and enable the quicker resolution of cases, offering the courts, local/ international clients, and an overburdened South African legal system a much-needed reprieve.
The cases above clearly highlight that the current Act and Regulations around commissioning were passed in a time when video conferencing and the internet were an idea not yet envisaged. The upward trend of courts admitting affidavits commissioned virtually reflects a necessary evolution of legal practices in response to the reality of a world in which technology has made life easier. This is not the first or the last time this will happen. The legislature and judiciary have already had to adopt a modernisation approach to the administrative court process through the introduction of Court Online and/or Case Lines when the COVID-19 pandemic struck.
The shift is consistent with the broader transformation of legal systems globally, as technology redefines how justice is administered. The call by some Judges to have the current Act and Regulations amended to incorporate virtual commissioning reflects a judiciary adapting to modernity while upholding the principles of justice and procedural integrity.
