Lillian Malone: Welcome to Perspectives.
Fasken's Legal Voices on Business.
Hello, everyone, and thank you for joining us for Fasken Perspectives, the Legal Voices on
Business. My name is Lillian Malone and I'm an Associate and the Corporate Restructuring
and Insolvency Practice.
I'm joined today by two of my colleagues who will introduce themselves.
Roy Shah: Hello, everyone. I'm Roy Shah, a Senior Associate in the Dispute Resolution practice
at Fasken.
Mohammed Moti: Hello, everyone. My name is Mohammed Moti and Associate also in the Dispute Resolution
practice at Fasken.
Lillian Malone: Today my colleagues and I would like to chat about recent case law that we find
interesting, and this is virtual commissioning of affidavits.
Commission of affidavits is a process that has been around for the longest time.
However, the onset of the Covid 19 pandemic has forced not only the world to function
differently, but to find new ways of doing business.
And as a result of this, the courts have also followed suit, ruling that the
commissioning of affidavits can actually be done virtually.
But before we get into what the courts have held and what they have said, I think we
should start by unpacking what the rules that govern the commission of affidavits
really are. Mohammed, won't you please take us through what these rules are?
Mohammed Moti: I think our point of departure is, of course, the legislation that governs the
administration of oaths, which is the justices of Peace and Commission of Oaths
Act. I'm not going to bore you with the specific sections, but it is important to
note that there are sections and there is a regulation that applies to the manner in
which an oath or affirmation is administered.
So there are two important points here.
Firstly, the Minister may make regulations prescribing the form and manner in which an
oath or affirmation is administered.
And secondly, the Minister decides who can become a commissioner of oaths by notice in
the Gazette. What is important here is that the oath must be prescribed in the presence
of the Commissioner of Oaths.
Lillian Malone: Right? So physical presence when commissioning an affidavit remains a
requirement?
Mohammed Moti: Yes. During the time when the Act was drafted and published into law, physical presence was
required. A deponent had to repose and sign the declaration in the physical presence of
the Commissioner of Oaths.
Of course, back in the day it would not have been envisioned that affidavits could be done
virtually. With the rise of the digital age, virtual interaction has become the norm.
The lockdown made it almost impossible to commission affidavits physically and brought
on the idea of virtual commissioning.
The million dollar question is whether virtual commissioning of affidavits is
legally acceptable or not.
Lillian Malone: Good question. Mohammed Roy, let me turn to you.
How have the courts approached this requirement of physical presence when dealing
with virtual commissioning?
Roy Shah: As a start, I should mention that the formalities prescribed in the Act have been
addressed as far back as in 1973.
So it's not a new thing that we have to deal with.
Like what Mohammed mentioned earlier, back in those days, one could never fathom that
virtual commissioning could be considered at all and whether physical presence was an
issue. So the prescribed formalities, although somewhat different generally, we
have already been dealt with by our courts as far back in 1973.
We see this in the case of State versus Man, where the court had to consider not a
question of physical presence per se, but the manner or chronological order the actual
affidavit was deposed to.
In that particular instance, an affidavit was signed by the deponent before a
commissioner had administered the oath as required in terms of the regulations.
Lillian Malone: Can we then draw similarities between this case of State versus Man and virtual
commissioning of an affidavit where the affidavit was signed not in the physical
presence of a commissioner.
Roy Shah: In State versus Man, the court dealt with formalities, but not particularly within the
whole prism of virtual commissioning.
But of course when dealing with formalities, we're still looking at essentially the same
principles. So what the court did actually there was to see what the purpose is behind
in terms of obtaining a deponent signature to an affidavit.
And it came to the conclusion that obviously the primary purpose to obtain that signature
is that it is proof that it's irrefutable evidence that the actual affidavit was sworn
to. The court went on to determine that compliance with regulations and Act provides
basically a guarantee of acceptance in evidence of affidavits.
Mohammed Moti: So if I understand you correctly, the court held that an affidavit will still be valid,
provided there has been substantial compliance with the regulations of the Act.
Roy Shah: Yes, that's that's correct.
So in essence, what we're looking at is more substance over form.
That's what basically it boils down to, substance over form.
So simply put, if one were to actually depose and sign to an affidavit without
following the prescribed requirements, but is obviously fully aware and had the
intention to be bound by that affidavit, then of course, the courts will no doubt
accept that affidavit in court.
So the test of substantial compliance with the regulations and whether it can be proved
or not is not a matter of law, but actually a matter of fact.
So it really comes down to that each circumstance of each case where the courts
have a discretion on whether or not to receive or accept an affidavit but that has
not complied with all of the prescribed requirements of the Act.
So so now that we've dealt with just generally the formalities and how the courts
have actually approached substantial compliance, Lillian, how are the courts
actually treating virtual commissioning South Africa during the present Covid 19
pandemic?
Lillian Malone: Our courts recently dealt with this issue in Nuttall versus Shana, and this is where it
had to decide whether virtual commissioning of a Covid 19 positive Deponent's affidavit
substantially complied with the Act.
In this case, the affidavit was emailed to the deponent by his attorney or her attorney
with instructions to read, initial and sign that affidavit before emailing it back to
that attorney and thereafter the Commissioner of Oaths video called that
deponent via WhatsApp and administered the oath.
So the court in this case then relied on authority of State versus Man, and it looked
at two issues. Firstly, that non-compliance with the regulations does not necessarily
invalidate an affidavit.
And the second part was that the regulations are only directory and not peremptory,
meaning that substantial compliance with formalities is all that is really required.
It was therefore on that basis, as well as the steps taken in Nuttall versus Shana to
commission that affidavit, that the court was satisfied that an affidavit could be
deposed to virtually where it was irrefutable that the affidavit was sworn to
by that deponent.
So now our courts accept that affidavits can actually be commissioned virtually.
The question that remains, however, is whether there may be any unintended
consequences arising from it.
What do you think about that?
Mohammed Moti: The obvious risks associated with allowing virtual commissioning or other substantive
compliance with the regulation is that it is open to abuse and may open the floodgates to
fraud. We've not even touched on or considered cases of duress or undue
influence.
Roy Shah: My two cents is, of course that it is definitely convenient for a deponent to sign
an affidavit virtually and not having to be physically present before a commission of
oath, which of course also comes with its limitations.
Also bearing in mind that we are moving towards an increasingly digital era where
technology is there to, of course, make our lives easier and a bit more efficient.
However, there's no doubt in the concerns of abuse.
And when considering such concerns from a Commissioner of Oaths perspective ensuring
compliance with regulations, it is important that commissioners do not expose themselves
to unnecessary risks by commissioning affidavits virtually.
Lillian Malone: So as a wrap up to discussion, we've seen that yes, the regulations have requirements
of physical presence.
However, substance over form is important in that substantial compliance is required and
in essence virtual commissioning is accepted by a court today.
We should, however, keep in mind that it should be the exception rather than the norm.
On that note, Thank you, Muhammad and Roy, for an interesting discussion.
And I look forward to further discussions with you on equally interesting topics.
Roy Shah: Thanks, Lillian. Thanks, Mohammed.
Mohammed Moti: Thanks, Roy. Thanks, Lillian.
Cheers, everyone.