This blog was co-authored by Sa’ood Lahri, Director and Muhammad Mirza, Candidate Attorney
In August 2021 the High Court accepted that an affidavit commissioned over a WhatsApp video-call constitutes substantial compliance with the applicable regulations and is valid in light of the practical difficulties faced by the deponent due to the raging Covid19 pandemic.
The deponent to the founding affidavit, infected with the Covid19 virus, was in self-isolation and could not leave her home to sign the declaration confirming the truth and correctness of her affidavit in the ‘presence of the commissioner of oaths’ as required by the regulations. The respondents attempted to argue that the deponent’s failure to sign the affidavit in the physical presence of the commissioner of oaths rendered the founding affidavit non-compliant and inadmissible. The court held that it did not, based on the practical steps taken by the deponent, the commissioner and the applicant’s attorney to ensure substantial compliance with the regulations.
The Court has a discretion to condone non-compliance with the formalities. Whether there has been ‘substantial compliance’ with the regulations is a matter of fact. Crucially, the applicant’s attorney in a confirmatory affidavit gave a detailed explanation of the steps taken by him and the commissioner to ensure substantial compliance with the requirement that the deponent sign the affidavit ‘in the presence’ of the commissioner, which was physically impossible. The:
- unsigned affidavit was emailed to the deponent with instructions to read, initial and sign it before emailing a scanned copy back to the attorney;
- commissioner spoke to the deponent via WhatsApp video-call, in the presence of the attorney;
- commissioner was able to identify the deponent as the person she professed to be;
- commissioner then posed the usual questions and administered the oath in the conventional way, the only difference being that the commissioner and deponent were not in the physical presence of each other and the deponent had initialled and signed the attestation to the affidavit before the video-call.
There is not a one size fits all approach, but the facts of this case provide a useful guide to the practical steps that could be taken to ensure substantial compliance with the regulations in similar circumstances. It is important for the commissioner to positively identify the deponent (for example by being shown a valid identity document over video) and to be satisfied that the deponent has positively responded to the required questions and that the oath or affirmation is verbally administered and heard.
It would be useful for the deponent to physically sign the affidavit and complete the attestation on the video-call so that this can be witnessed.
It is recommended that the steps taken are described fully in a confirmatory affidavit signed by the attorney.
The findings of the court are not binding on other courts, but it is submitted that the reasoning of the court is persuasive and a welcomed approach.
That is not to say that litigants can choose to ignore the requirements prescribed by the regulations for the commissioning of affidavits where it is difficult or inconvenient to comply with them or that the Courts should ignore the rules regarding the admissibility of evidence on affidavit in civil proceedings, particularly if there are concerns about fraud or duress in procuring of the affidavit. But, it is submitted that a flexible pragmatic approach, taking into account the realities of events such as the Covid19 pandemic should be adopted in adjudging whether substantial compliance has been achieved.
 Regulations Governing the Administering of an Oath or Affirmation, published in terms of s10 of the Justices of the Peace and Commissioners of Oaths Act, 1963.