INTRODUCTION

South African statutory requirements impose strict regulations on the commissioning of affidavits. There have been instances where cases were dismissed due to non-compliance with these regulations. This article discusses two of these regulations with which a litigant must seek to comply with.

COMMISSIONING OF AFFIDAVITS

Section 10(1)(b) of the Justices of the Peace Commissioners of Oaths Act,¹ empowers the Minister of Justice to make regulations prescribing the form and manner in which an oath or affirmation must be administered. Pursuant to this authority, the Regulations Governing the Administering of an Oath or Affirmation were promulgated.² In particular, Regulations 3 and 4 govern the administration and commissioning of affidavits. In summary, Regulation 3 deals with the deponent signing the affidavit, and requires the deponent to sign it in the presence of the Commissioner of Oaths. Regulation 4 deals with what the Commissioner is required to do after the deponent has signed it.

REGULATION 4

Regulation 4(1) states that ‘below the deponent’s signature or mark the commissioner of oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration.’³ Regulation 4(2) further requires the commissioner of oaths to sign the declaration and print his full name and business address below their own signature; and state his designation and the area which he holds his appointment of the office held by him if he holds his appointment ex officio. In the case of Mdakane and Others v Kwadukuza Municipality and Others,⁴ the Labour Court of South Africa, Durban recently explored compliance with this Regulation.

MDAKANE AND OTHERS V KWADUKUZA MUNICIPALITY AND OTHERS

In this matter, the applicants launched an urgent application challenging their suspensions by the KwaDukuza Municipality.⁵

The respondents opposed the application and raised several preliminary objections. One of the objections related to the founding affidavit. It was pointed out that the signatures of the deponent and the Commissioner of Oaths did not correspond with the names appearing on the affidavit. No satisfactory explanation was provided for this discrepancy.

A further issue that arose was as a result of the Commissioner of Oaths failing to affix his signature to the founding affidavit and had merely stamped the document with his attorney’s stamp. The Commissioner explained that this omission was simply an error. He subsequently requested Mr Mdakane to return to his office on a later date, where he then signed the affidavit. The Court rejected this explanation, noting that the purportedly corrected affidavit had not been attached as an annexure to the Commissioner’s explanatory affidavit.⁶

Importantly, the Court stressed that the deponent must personally sign the affidavit in the presence of the Commissioner of Oaths, who must thereafter complete the certification and sign the declaration in accordance with the Regulations.⁷ Put differently, the deponent cannot instead be called upon to witness the Commissioner signing. The Court ultimately concluded that there was no valid affidavit before it to support the notice of motion.

REGULATION 3

Regulation 3 requires a deponent to sign the declaration in the presence of the Commissioner of Oaths.⁸

In Firstrand Bank Ltd v Briedenhann,⁹ it was found that this Regulation means ‘in the physical presence or proximity of the commissioner.’

In LexisNexis South Africa (Pty) Ltd v Minister of Justice and Constitutional Development,¹⁰ LexisNexis sought declaratory relief to allow for the commissioning of affidavits in line with the modern era of technology. LexisNexis indicated that there has been a massive growth in the use of technology in recent years, especially after the Covid-19 Pandemic. It further provided evidence that it had itself ‘developed a secure, web-based platform, LexisSign (LS system), facilitating the electronic signature of a variety of documents.’

The SCA ultimately dismissed the appeal, finding that LexisNexis had not established the necessary interest to obtain the declaratory relief sought. The Court nevertheless considered the legal position regarding the virtual commissioning of affidavits and noted that, as matters stood, there was legal certainty that Regulation 3 requires the deponent to sign the declaration in the physical presence of the Commissioner.

However, the SCA acknowledged that there are cases such as Firstrand Bank Ltd v Briedenhann,¹¹ Knuttel N. O. v Bhana,¹² and E D Foods SRL v Africa’s Best (Pty) Ltd,¹³ where courts have accepted substantial compliance despite virtual commissioning. The SCA further recognised that, while affidavits may be prepared and signed electronically, the virtual administration of the oath does not fall within the current wording of Regulation 3. Any change to permit the general use of technological platforms for the virtual commissioning of affidavits would therefore need to be effected through the regulatory process by the Minister, rather than through judicial interpretation.¹⁴

Similarly, the Court in Briedenhann found that Regulation 3 does not accommodate the “virtual presence” of a Commissioner, as its plain meaning requires the deponent to take the oath and sign the declaration in the physical presence or proximity of the Commissioner.¹⁵

However, and importantly, the Court found that the Regulations are generally directory rather than peremptory and that a court may, in appropriate circumstances, admit an affidavit where there has been substantial compliance with the Regulations.¹⁶ In that case, despite finding that the affidavit had not been commissioned in accordance with Regulation 3, the Court exercised its discretion to admit the affidavit, as the purposes of the Regulation had been substantially achieved and it would not have been in the interests of justice to reject the affidavit.¹⁷ The Court nevertheless cautioned that a party cannot deliberately choose an alternative method of commissioning where compliance with the Regulations is possible and then seek to rely on substantial compliance.¹⁸

CONCLUSION

These cases demonstrate the importance of complying with the Regulations governing the commissioning of affidavits. While a Court may, in appropriate circumstances, admit an affidavit where there has been substantial compliance, this does not mean that the requirements can simply be disregarded. The decision in Mdakane illustrates that non-compliance with the Regulations may have serious consequences and, in certain circumstances, may render an affidavit invalid and fatally defective. Litigants and Commissioners of Oaths should therefore ensure that Regulations 3 and 4 are carefully complied with wherever possible, rather than relying on a Court to condone non-compliance.