In-Person Commissioning: An Outdated Inconvenience Awaiting Parliamentary Intervention

In today’s fast-paced digital world, legislation often struggles to keep up with the rapid advancements in technology.

An example of such legislation is the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963 (“the Act”). The Act requires that oaths be administered in the presence of a commissioner of oaths. Is this in-person requirement still necessary in an era of virtual meetings and electronic signatures?

This question was unequivocally answered in a recent judgment from the High Court of South Africa, Gauteng Division, Pretoria, but not in the way those who have experienced the inconvenience of driving to and queuing in police stations, post offices, and other locations would have hoped for.

A global publishing company sought an order to broaden the interpretation of the phrase “in the presence of” contained in the regulations the Minister of Justice had published in terms of the Act, arguing that it should cover the administration of oaths or affirmations through live electronic communication, incorporating both audio and visual elements.

Our courts have, on occasions, permitted the commissioning of affidavits virtually, ruling that the “in the presence of” requirement was directory rather than peremptory, and that substantial compliance with the regulation was sufficient. Therefore, based on the specific circumstances of each case, a court might permit the virtual commissioning of an affidavit, though this would be an exception rather than the norm. One such exception was when a deponent contracted COVID-19 and was unable to attend the commissioner of oaths’ offices.

The order sought by the publishing company was distinct in that it aimed to broaden the interpretation of “in the presence of”. If successful, this would have allowed for the virtual commissioning of all affidavits in the future.

The Oxford English dictionary defines “presence” as “the fact or condition of being present; the state of being with or in the same place as a person or thing….”, and “a number of people assembled together”.

Our common law dictates that when interpreting legislation, judges must be alert to and guard against the temptation to substitute what they regard as reasonable, sensible, or businesslike for the words actually used. Attention must be paid to the language used in legislation, considering the standard rules of grammar and syntax; its context; its apparent purpose; and the information available to its drafters.

The judge found that the meaning of the phrase “in the presence of” was clear. Accepting the interpretation argued for by the publishing company, while more convenient, would have meant the judge crossed the line between interpreting legislation and legislating. Accordingly, the judge refused to grant the order sought by the publishing company.

With the elections now behind us and a new parliament set to be constituted shortly, let’s hope that this outdated legislation will be revisited and updated to reflect the changing technological landscape.