In the May 2023 case of Phumelela Local Municipality v Telkom SA SOC Limited, the validity of a founding affidavit submitted to the court in relation to an application for summary judgment was rejected for want of compliance with the commissioner of oaths regulations.
The founding affidavit in support of the summary judgement application stated the following in the declaration,
“I, the undersigned,
xxxxxxxxx
Do hereby make oath and say that…”
At the end of the founding affidavit the Commissioner of Oaths portion stated the following,
“I hereby certify that the deponent has acknowledged that he knows and understands the content of this affirmation, which was signed to before me at Midrand on this the 7th day of March 2023, the regulations contained in government notice number 3619 of 21 July 1972 and 1648 of 19 Aug 1977 having been complied with”.
The applicant submitted that the founding affidavit did not comply with the Rule 32 in that it was not an affidavit, nor an affirmation as provided for in the Regulations made in terms of Section 10 of the Justices of Peace and Commissioners of Oaths Act, 1963.
The applicant’s main contention was the word “oath” contained in the heading to the declaration contradicts the affirmation taken by the Commissioner of Oaths. It therefore does not constitute an oath nor an affirmation, as required by the Regulations.
An oath is in Regulation 1(1):
“I swear that the contents of this declaration are true, so help me God”
An affirmation is in Regulation 1(2):
“I truly affirm that the contents of this declaration are true”.
Regulation 1(1) and 1(2) requires from the commissioner of oath to ascertain whether the deponent is making the declaration under oath; or wishes to affirm that the declaration is true. An oath requires different words to be said by the deponent than when the deponent affirms that the declaration is true.
- The Commissioner has a duty to ascertain:
What the deponent wishes to do by asking them whether they wish to take the oath; or - Would prefer to affirm the truth of the declaration.
The Commissioner must then ask the deponent to make the appropriate statement either in terms of Regulation 1(1) or Regulation 1(2). The failure to ascertain whether the deponent was taking the oath or making an affirmation, supports the inference that the Commissioner did not properly administer the oath or an affirmation.
In the circumstances, the founding affidavit attached to application for summary judgment did not meet the requirements to constitute an affidavit or an affirmation. The application for summary judgment was struck out.
