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Lillian Malone:
Welcome to Perspectives.

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Fasken's Legal Voices on Business.

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Hello, everyone, and thank you for joining us
for Fasken Perspectives, the Legal Voices on

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Business. My name is Lillian Malone and I'm
an Associate and the Corporate Restructuring

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and Insolvency Practice.

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I'm joined today by two of my colleagues who
will introduce themselves.

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Roy Shah:
Hello, everyone. I'm Roy Shah, a Senior
Associate in the Dispute Resolution practice

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at Fasken.

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Mohammed Moti:
Hello, everyone. My name is Mohammed Moti and
Associate also in the Dispute Resolution

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practice at Fasken.

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Lillian Malone:
Today my colleagues and I would like to chat
about recent case law that we find

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interesting, and this is virtual
commissioning of affidavits.

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Commission of affidavits is a process that
has been around for the longest time.

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However, the onset of the Covid 19 pandemic
has forced not only the world to function

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differently, but to find new ways of doing
business.

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And as a result of this, the courts have
also followed suit, ruling that the

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commissioning of affidavits can actually be
done virtually.

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But before we get into what the courts have
held and what they have said, I think we

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should start by unpacking what the rules
that govern the commission of affidavits

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really are. Mohammed, won't you please take
us through what these rules are?

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Mohammed Moti:
I think our point of departure is, of course,
the legislation that governs the

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administration of oaths, which is the
justices of Peace and Commission of Oaths

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Act. I'm not going to bore you with the
specific sections, but it is important to

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note that there are sections and there is a
regulation that applies to the manner in

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which an oath or affirmation is
administered.

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So there are two important points here.

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Firstly, the Minister may make regulations
prescribing the form and manner in which an

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oath or affirmation is administered.

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And secondly, the Minister decides who can
become a commissioner of oaths by notice in

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the Gazette. What is important here is that
the oath must be prescribed in the presence

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of the Commissioner of Oaths.

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Lillian Malone:
Right? So physical presence when
commissioning an affidavit remains a

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requirement?

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Mohammed Moti:
Yes. During the time when the Act was drafted
and published into law, physical presence was

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required. A deponent had to repose and sign
the declaration in the physical presence of

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the Commissioner of Oaths.

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Of course, back in the day it would not have
been envisioned that affidavits could be done

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virtually. With the rise of the digital age,
virtual interaction has become the norm.

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The lockdown made it almost impossible to
commission affidavits physically and brought

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on the idea of virtual commissioning.

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The million dollar question is whether
virtual commissioning of affidavits is

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legally acceptable or not.

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Lillian Malone:
Good question. Mohammed Roy, let me turn to
you.

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How have the courts approached this
requirement of physical presence when dealing

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with virtual commissioning?

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Roy Shah:
As a start, I should mention that the
formalities prescribed in the Act have been

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addressed as far back as in 1973.

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So it's not a new thing that we have to deal
with.

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Like what Mohammed mentioned earlier, back
in those days, one could never fathom that

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virtual commissioning could be considered at
all and whether physical presence was an

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issue. So the prescribed formalities,
although somewhat different generally, we

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have already been dealt with by our courts
as far back in 1973.

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We see this in the case of State versus Man,
where the court had to consider not a

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question of physical presence per se, but
the manner or chronological order the actual

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affidavit was deposed to.

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In that particular instance, an affidavit
was signed by the deponent before a

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commissioner had administered the oath as
required in terms of the regulations.

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Lillian Malone:
Can we then draw similarities between this
case of State versus Man and virtual

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commissioning of an affidavit where the
affidavit was signed not in the physical

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presence of a commissioner.

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Roy Shah:
In State versus Man, the court dealt with
formalities, but not particularly within the

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whole prism of virtual commissioning.

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But of course when dealing with formalities,
we're still looking at essentially the same

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principles. So what the court did actually
there was to see what the purpose is behind

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in terms of obtaining a deponent signature
to an affidavit.

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And it came to the conclusion that obviously
the primary purpose to obtain that signature

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is that it is proof that it's irrefutable
evidence that the actual affidavit was sworn

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to. The court went on to determine that
compliance with regulations and Act provides

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basically a guarantee of acceptance in
evidence of affidavits.

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Mohammed Moti:
So if I understand you correctly, the court
held that an affidavit will still be valid,

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provided there has been substantial
compliance with the regulations of the Act.

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Roy Shah:
Yes, that's that's correct.

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So in essence, what we're looking at is more
substance over form.

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That's what basically it boils down to,
substance over form.

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So simply put, if one were to actually
depose and sign to an affidavit without

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following the prescribed requirements, but
is obviously fully aware and had the

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intention to be bound by that affidavit,
then of course, the courts will no doubt

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accept that affidavit in court.

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So the test of substantial compliance with
the regulations and whether it can be proved

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or not is not a matter of law, but actually
a matter of fact.

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So it really comes down to that each
circumstance of each case where the courts

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have a discretion on whether or not to
receive or accept an affidavit but that has

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not complied with all of the prescribed
requirements of the Act.

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So so now that we've dealt with just
generally the formalities and how the courts

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have actually approached substantial
compliance, Lillian, how are the courts

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actually treating virtual commissioning
South Africa during the present Covid 19

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pandemic?

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Lillian Malone:
Our courts recently dealt with this issue in
Nuttall versus Shana, and this is where it

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had to decide whether virtual commissioning
of a Covid 19 positive Deponent's affidavit

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substantially complied with the Act.

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In this case, the affidavit was emailed to
the deponent by his attorney or her attorney

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with instructions to read, initial and sign
that affidavit before emailing it back to

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that attorney and thereafter the
Commissioner of Oaths video called that

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deponent via WhatsApp and administered the
oath.

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So the court in this case then relied on
authority of State versus Man, and it looked

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at two issues. Firstly, that non-compliance
with the regulations does not necessarily

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invalidate an affidavit.

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And the second part was that the regulations
are only directory and not peremptory,

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meaning that substantial compliance with
formalities is all that is really required.

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It was therefore on that basis, as well as
the steps taken in Nuttall versus Shana to

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commission that affidavit, that the court
was satisfied that an affidavit could be

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deposed to virtually where it was
irrefutable that the affidavit was sworn to

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by that deponent.

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So now our courts accept that affidavits can
actually be commissioned virtually.

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The question that remains, however, is
whether there may be any unintended

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consequences arising from it.

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What do you think about that?

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Mohammed Moti:
The obvious risks associated with allowing
virtual commissioning or other substantive

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compliance with the regulation is that it is
open to abuse and may open the floodgates to

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fraud. We've not even touched on or
considered cases of duress or undue

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influence.

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Roy Shah:
My two cents is, of course that it is
definitely convenient for a deponent to sign

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an affidavit virtually and not having to be
physically present before a commission of

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oath, which of course also comes with its
limitations.

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Also bearing in mind that we are moving
towards an increasingly digital era where

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technology is there to, of course, make our
lives easier and a bit more efficient.

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However, there's no doubt in the concerns of
abuse.

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And when considering such concerns from a
Commissioner of Oaths perspective ensuring

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compliance with regulations, it is important
that commissioners do not expose themselves

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to unnecessary risks by commissioning
affidavits virtually.

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Lillian Malone:
So as a wrap up to discussion, we've seen
that yes, the regulations have requirements

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of physical presence.

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However, substance over form is important in
that substantial compliance is required and

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in essence virtual commissioning is accepted
by a court today.

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We should, however, keep in mind that it
should be the exception rather than the norm.

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On that note, Thank you, Muhammad and Roy,
for an interesting discussion.

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And I look forward to further discussions
with you on equally interesting topics.

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Roy Shah:
Thanks, Lillian. Thanks, Mohammed.

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Mohammed Moti:
Thanks, Roy. Thanks, Lillian.

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Cheers, everyone.