In a July 2023 Judgment, the High Court considered whether a commissioner of oaths is able to commission a document where a deponent is not physically present at commissioning.

The court was required to consider whether a founding affidavit to an application as well as the replying affidavit had been properly commissioned in compliance with Regulation 3(1) of the Regulations Governing the Administering of Oath or Affirmation.

According to Regulation 3(1), the deponent to an affidavit must sign the declaration in the presence of the Commissioner of Oaths.

The applicant in this matter had signed the founding and replying affidavits to the application in Zimbabwe. The affidavits were commissioned in South Africa over Whatsapp video.

The court commented that it is alive to the established practice that points taken on non-compliance of affidavits need not be upheld in an overly technical manner, as substantial compliance often suffices, and courts routinely condone substantial compliance. It was also noted that the courts have already confirmed that non-compliance with regulations would not invalidate an affidavit if there was substantial compliance with the formalities of the regulations.

The Court referred to previous authority for the view that substantial compliance with Regulation 3(1) is sufficient in circumstances where physical presence of the deponent with the commissioner is impossible owing to extraordinary circumstances such as COVID-19 (in the previous matter, a WhatsApp video call between the deponent and the commissioner of oaths was found to constitute substantial compliance with Regulation 3(1)).

In the present case, the applicant’s failure to comply strictly with Regulation 3(1) was due to an inability to travel to the location of the commissioner of oaths for reasons including alleged financial difficulties and other pressing competing interests. While it was noted that the applicant’s reasons for their failure to be physically present at the commissioning of the applications in this matter were noted to have been “deserving of a sympathetic ear”, the court held that they were nowhere near being exceptional or extraordinary enough to attract the rationale which was handed down in the previous judgements.

The court distinguished between the authority for condoning substantial compliance during the COVID-19 pandemic and the present matter and found that the COVID-19 judgements were influenced by extraordinary circumstances imposed by an international pandemic.

Further, the Court commented that “impediments to physical presence” which are capable of being addressed one way or another should not be elevated to the exceptionality that was presented, for instance, by a pandemic, as this would open the floodgates in such a manner that the spirit and purport of Regulation 3(1) would be adulterated and defeated.

The Court also considered whether there is any instrument available in law which is available to persons who wish to depose to affidavits from outside of the borders of South Africa for use in the South African courts, and held that section 8 of the Justices of the peace and Commissioners of Oath Act 16 of 1963 clearly provides that an applicant who seeks to have an affidavit “properly commissioned” for use in the South African courts from outside of South Africa ought to have attended at the South African Embassy in their country of residence (in this instance, Zimbabwe) to have the affidavit commissioned. Of relevance, the court also stated that it is clear that the legislature wanted affidavits deposed to outside of South Africa to be commissioned through a well set out process which the applicant could have and should have complied with if they were unable to travel to South Africa for purposes of compliance with Regulation 3(1).

In the circumstances, the court found that there was no founding affidavit or answering affidavit before it, as the affidavits had not been commissioned in accordance with the Regulations, and there was no substantive compliance with Regulation 3(1) by the applicant.