Commissioners of Oaths are required to carry out affidavits, most often used in legal proceedings or police reports, which must be sworn or affirmed before a Commissioner of Oaths. In addition, a will or other testamentary documents must be commissioned by a Commissioner of Oaths in certain circumstances. Regulations governing the Administration of an Oath or Affirmation, which the Minister of Justice made in Section 10(1)(b) of the Justices of Peace and Commissioners of Oath Act 16 Of 1963. 

How an oath is typically administered

When commissioning a document, the Commissioner, in person, administers an oath to the deponent. The following questions are asked and answered:  

• does he or she understand the declaration; 
• does he or she have an objection to taking the oath;  
• does he or she consider the oath to be binding on their conscience.

Once the oath is taken, the deponent signs the document in the presence of the Commissioner. The Commissioner confirms this by placing their signature and stamp on the document. 

Virtual Commissioning

As we live in a technologically advanced world, we can now use "virtual" means to commission documents. In some instances, deponents may not always be able to physically attend to the commissioning process. This may occur when a deponent is working remotely, in quarantine, self-isolation, or subjected to government-imposed lockdown. 

In S v Munn 1973 (3) SA 734 (NC)1, the Court confirmed the Regulations are directory only. Further, that non-compliance would not invalidate an affidavit if there was substantial compliance with the formalities in such a way as to give effect to the purpose of obtaining the deponent's signature to an affidavit. This case confirmed that the requirement of physical presence between the deponent and the Commissioner is not peremptory and can be relaxed on proof of the facts of substantial compliance with the requirements.

In a more recent case, Knuttel NO v Bhana (2021) 38683-20 (GJ)2, the Court measured whether the extraordinary steps were taken for the commissioning of the oath of the deponent to the Founding Affidavit, who was infected with the COVID-19 virus at the time, constituted substantial compliance with the requirements for the commissioning of oaths. In this case, the legal practitioner followed the Court adopted approach, except that the deponent initialled and signed the affidavit before the video call. Accordingly, the Court held substantial compliance with the requirement for person-to-person presence in administering the oath for the founding affidavit.

The courts have adopted the following approach for virtual commissioning: 

• The deponent must have a hard copy of the document; 
• The deponent must prove their identity by producing an identity document to the Commissioner; 
• The Commissioner proceeds to ask the three questions, as governed by the Act; 
• If the Commissioner is satisfied with the above answers, watches the deponent sign the document; 
• The deponent will then scan the signed document through an e-mail to the Commissioner; 
• The Commissioner will print and peruse the signed document to confirm its authenticity and sign where required.

Conclusion

Virtual commissioning is not without risks. For example, a forged identity document may go undetected over a video call. Nevertheless, the Court's adopted approach is a welcomed guideline for those who require a change from the rigidity of physical presence when commissioning affidavits. 

Written by Robyn Shepherd, SchoemanLaw