Lillian Malone:

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Welcome to Perspectives.

Lillian Malone:

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Fasken's Legal Voices on Business.

Lillian Malone:

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

Lillian Malone:

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

Lillian Malone:

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and Insolvency Practice.

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

Roy Shah:

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

Roy Shah:

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at Fasken.

Mohammed Moti:

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

Mohammed Moti:

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practice at Fasken.

Lillian Malone:

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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?

Mohammed Moti:

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

Mohammed Moti:

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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.

Mohammed Moti:

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So there are two important points here.

Mohammed Moti:

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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.

Mohammed Moti:

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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.

Lillian Malone:

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Right? So physical presence when commissioning an affidavit remains a

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requirement?

Mohammed Moti:

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

Mohammed Moti:

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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.

Mohammed Moti:

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

Mohammed Moti:

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

Mohammed Moti:

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

Mohammed Moti:

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on the idea of virtual commissioning.

Mohammed Moti:

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The million dollar question is whether virtual commissioning of affidavits is

Mohammed Moti:

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legally acceptable or not.

Lillian Malone:

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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?

Roy Shah:

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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.

Roy Shah:

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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

Roy Shah:

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

Lillian Malone:

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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.

Roy Shah:

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

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whole prism of virtual commissioning.

Roy Shah:

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

Roy Shah:

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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.

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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basically a guarantee of acceptance in evidence of affidavits.

Mohammed Moti:

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

Mohammed Moti:

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

Roy Shah:

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Yes, that's that's correct.

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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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

Roy Shah:

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

Roy Shah:

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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.

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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actually treating virtual commissioning South Africa during the present Covid 19

Roy Shah:

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pandemic?

Lillian Malone:

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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.

Lillian Malone:

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

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consequences arising from it.

Lillian Malone:

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What do you think about that?

Mohammed Moti:

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The obvious risks associated with allowing virtual commissioning or other substantive

Mohammed Moti:

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

Mohammed Moti:

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

Mohammed Moti:

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influence.

Roy Shah:

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

Roy Shah:

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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.

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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

Roy Shah:

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to unnecessary risks by commissioning affidavits virtually.

Lillian Malone:

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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.

Lillian Malone:

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

Lillian Malone:

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

Roy Shah:

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Thanks, Lillian. Thanks, Mohammed.

Mohammed Moti:

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Thanks, Roy. Thanks, Lillian.