Law and technology: can an oath be commissioned virtually?

29 May 2024 ,  Lucian Companie 505
In a recent Judgment in the South Gauteng High Court, it was decided that the law pertaining to the administering of the oath is wide enough to be interpreted to allow a Commissioner of Oaths to commission an affidavit virtually.

In the matter of ED Foods SRL vs AFRICA’S BEST (PTY) LIMITED, Case Number 1245/2022, Judge Den Hartog concluded that an objection to the fact that the clients deposed to an affidavit via the virtual platform MS Teams was in order, and that the law should be adaptable to changing circumstances.

In this matter, the affidavits that were placed before the court were deposed and commissioned virtually. The deponents were abroad and the commissioner of oaths was an attorney based in South Africa. The law that regulates the commissioning of affidavits is the Justices of Peace and Commissioners of Oaths Act, 16 of 1963 and the published Regulations. In terms hereof, a deponent is required to sign in the presence of the Commissioner of Oaths.

Due to the circumstances in which the deponents found themselves in this matter, they were unable to depose to the affidavits in the physical presence of the Commissioner of Oaths and did so electronically. This was objected to by the opposing party on the premise that the affidavits were not deposed to in the ‘presence’ of the Commissioner of Oaths and therefore not in compliance with the provisions of the law.

The Court disagreed with this contention, and having considered the circumstances of the matter found that there was indeed substantial compliance with the provisions of the law that regulates the administration of the oath. The Court considered that the deponents appeared virtually before the Commissioner of Oaths, the latter properly administered the oath in accordance with the prescripts of the law as he would have done had the deponents been physically present in his office. 

The Court was further satisfied that the steps which the Commissioner of Oaths took in ensuring that there was adherence to the provisions of the law, in how the affidavit was sent to him and to the deponents, the signature thereof and that the oath was properly administered, was done with a view that there be substantial compliance with the provisions of law.

In the judgment, in coming to the conclusion to allow the affidavits to stand, reference was made to a further judgment of Judge Satchwell in the matter of Uramin (Incorporated in British Columbia) t/a Areva Resources Southern African v Perie 2017 (1) SA 236 that inter alia found the courts cannot become ignorant of the needs of society and economies within which they operate and that Courts must adapt to the requirement of the modernities within which they operate and upon which they adjudicate.

It was concluded in the latter Judgement that our Constitution and the rules of court mandate the courts to make the necessary development on a case-by-case basis and era-by-era basis. These judgments confirm the long-standing principle that legal practitioners, and with respect in certain instances our courts, tend to disregard in the interpretation and application of legislation is that of ‘substance over form’ should be preferred in determining compliance. 

However, and correctly so, Judge Den Hartog cautioned the profession that this Judgment does not mean that Courts can ‘willy nilly’ accept non-compliance with acts and regulations, but must at the same time be aware of the requirement that there must be substantial compliance with such acts and regulations. The Court was satisfied that this was done in this matter.

The Judgment is a positive step in the right direction in my view. It is important that our law continues to develop and takes cognisance of the trends in the changes in modern technology and changes in the legal industry. What may in the past be viewed to be unheard of such as virtual / online consultations meetings and even Court hearings are slowly but surely becoming the norm of conducting business. 

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