This blog was co-authored by: Caitlin Gardiner, Candidate Attorney

The South African court system has found itself in a new digitised era following the restrictive lock‑down measures introduced as a result of the Covid-19 pandemic. Directives were introduced to safeguard the public’s access to justice which included the widespread adoption of remote technologies such as the introduction of virtual court proceedings and electronic document management. Whilst the technological advancement can be viewed as an advantage to the court system, we should be cautious to understand the limitations of these advancements.

In the Eastern Cape High Court judgment of Firstrand Bank Limited v Briedenhann [2022] ZAECQBHC 6 (5 May 2022), the court had to determine whether an oath administered by a commissioner of oaths by way of a video conference should be accepted.  The court assessed whether Regulation 3(1) of the Regulations Governing Administration of Oaths and Affirmations, which provides that “the deponent shall sign the declaration in the presence of the Commissioner of Oaths”, was envisioned to include virtual presence.  Whilst the Electronic Communications and Transactions Act, 2002 specifically provides for the attachment of an advanced electronic signature by a commissioner of oaths, the court cautioned that it was not assessing whether electronic signatures are to be accepted but whether for the purposes of Regulation 3(1) a video link may be employed.

The court held that to interpret Regulation 3(1) to include “virtual depositions” would fall within the ambit of the legislature and the executive and it is not a determination for the judiciary to make. It noted the Knuttel N.O and Others v Bhana judgment as the sole known case in South Africa where a court admitted an affidavit deposed to by way of a virtual link.  The court reflected on the current circumstances before it and noted that the non-compliance by the current deponent was of a deliberate choice where actual presence was possible whereas in the Knuttel case, the need to protect people from infection with Covid-19 precluded the appearance of the infected deponent before the commissioner.

In assessing the interpretation of Regulation 3(1) the Court considered the language of this regulation when read in the context of the regulations as a whole. It concluded that when read with regulations which provide for the manner in which an oath is to be administered, the purpose of the Regulation is to provide the court with assurance that the deponent, properly identified as the signatory has taken the oath and by the attachment of their signature, guaranteed that the consequences of taking the oath are understood and accepted.

Regardless of the court’s disapproval of oaths deposed to by way of a video link, the Court accepted the virtually deposed to affidavit because it found that it would not be in the interest of justice for the plaintiff to bring its default judgment application afresh using affidavits which in substance would contain the same allegations.  However, the court ultimately held that the court would not condone non-compliance with the Regulations where it results from an election not to follow possible requirements.  It acknowledged, however, that the circumstances giving rise to the non-compliance would be relevant for purposes of this compliance assessment.

With this judgment in hand, we recommend making the effort to ensure all affidavits are deposed to by the authorised deponent in front of the commissioner.  This will avoid having your matter dismissed by a court, re-incurring the costs of having to repeat court processes, and the effort required by your team to get the matter progressed.  In other situations the affidavit may be rejected by anyone requiring it, so it’s better not to take a chance if actual presence is possible.