Law vs Technology: the JHB High Court on virtual commissioning in a digital era

The JHB High Court recently delivered a significant case pertaining to virtual commissioning. This case presented a significant legal question regarding the validity of affidavits commissioned virtually, particularly when the deponent is located outside the Republic of South Africa (RSA) and the Commissioner of Oaths is within the RSA. The central issue was whether such affidavits, commissioned via video conferencing platforms like Zoom, comply with the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and its accompanying Regulations.

The Appellant challenged the admissibility of the Respondent’s affidavits on the basis that they were commissioned virtually. The deponents were located in Italy, while the Commissioners of Oaths were attorneys based in South Africa. The Appellant argued that:

• The affidavits were not signed in the physical presence of the Commissioner, violating Regulation 3(1).
• The Commissioners lacked the authority to administer oaths outside the RSA.
• The Respondent failed to explain why it did not follow the proper procedures for commissioning affidavits abroad, such as using foreign officials designated under section 8 of the Act or authenticating the affidavits under Uniform Rule 63.

Regulation 3(1) requires that a deponent sign an affidavit “in the presence of” a Commissioner of Oaths. The court reaffirmed the interpretation in Firstrand Bank Ltd v Briedenhann, where it was held that “in the presence of” means physical proximity, not virtual presence. The court emphasised that the Act and Regulations are outdated, having been enacted before the advent of digital technologies, and do not currently accommodate virtual commissioning.

The court distinguished between:

• Ex officio Commissioners (e.g., attorneys in South Africa), who are designated under section 6 and may act within the RSA.
• Foreign office holders designated under section 8, who may administer oaths outside the RSA, provided the affidavits are authenticated per section 8(2).

The court found that the Commissioners in this case, being ex officio Commissioners based in South Africa, exceeded their territorial authority by administering oaths to deponents located abroad. The court a quo had erred in concluding that such Commissioners could act under section 8(1)(b), which applies only to foreign office holders.

Despite the technical non-compliance, the court emphasised that the Regulations are directory, not peremptory. Courts have discretion to admit non-compliant affidavits if there is substantial compliance and it is in the interests of justice.

The court cited several precedents, including:

• S v Munn and Van As NO v Jacobs NO, which held that substantial compliance suffices.
• VJS v SH, where an affidavit commissioned via Zoom from Pakistan was accepted due to hardship and the need for a pragmatic approach.
• Briedenhann, where despite non-compliance, the court admitted affidavits to avoid unnecessary delay and costs.

In this case, the Commissioners confirmed the identity of the deponents, the administration of the oath, and the integrity of the process. The court found that Regulations 1, 2, and 4 were complied with, and only Regulation 3(1) was not.

The court held that:

• Virtual commissioning is not currently sanctioned under the Act and Regulations.
• The Commissioners exceeded their authority by administering oaths to deponents outside the RSA.
• However, the court a quo correctly exercised its discretion to admit the affidavits, finding substantial compliance and acting in the interests of justice.

The court emphasised that rejecting the affidavits would have led to unnecessary delay and increased costs, especially since the affidavits’ authenticity and the deponents’ identities were not in dispute.

This case underscores the legal uncertainty surrounding virtual commissioning in South Africa. While the current legislative framework does not permit virtual commissioning, courts retain a discretionary power to admit such affidavits where there is substantial compliance and justice so demands. The judgment calls for legislative reform to align the law with modern technological realities and ensure clarity and consistency in legal proceedings involving remote parties.

Given the rapid advancements in technology, the rise of artificial intelligence, and the increasing globalisation of legal practice, this case is particularly important. It highlights the urgent need for legislative reform to accommodate remote legal processes, including virtual commissioning. As cross-border transactions and international litigation become more common, legal systems must evolve to ensure accessibility, efficiency, and fairness in a digitally connected world.

Article by:
Mtho Maphumulo
Attorney at Adams & Adams
Insurance & Financial Services law Department