This blog is co-authored by Yuveshen Nadioo, candidate attorney.

In September 2025, the High Court clarified that affidavits commissioned virtually where the commissioner is in South Africa and the person making the affidavit is abroad do not comply with South African law. This case is a reminder that you cannot commission oaths virtually, even though the court has a discretion regarding non-compliance.

The dispute arose from a settlement agreement between two companies. The claimant sought payment of an outstanding balance and relied on affidavits commissioned in South Africa, while the deponents were physically in Italy. The respondent objected, arguing that these affidavits were not signed in the physical presence of the commissioner, as required by regulation 3(1) under the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963.

The court made it clear that the current law expects affidavits to be signed in the physical presence of a commissioner of oaths. Regulation 3(1) was written in a time before digital technology and assumes that the deponent and commissioner are in the same place. Because of this, virtual commissioning is not officially allowed under the existing rules. For it to become fully legal, Parliament would need to change the law.

For people outside South Africa, the correct way to swear an affidavit is through section 8 of the Act. This means using a foreign official, like a notary, who is authorised by Gazette notice, and then making sure the affidavit is properly authenticated. Trying to use a South African commissioner over video for someone abroad does not fit into section 8’s requirements.

Courts do have some discretion under Rule 63 and section 37C to accept documents if they are satisfied about authenticity or if justice requires it. In practice, courts might accept affidavits commissioned virtually, but only if the process was properly documented and the integrity of the evidence is clear. This is not the standard approach and will only happen in exceptional cases.

For lawyers, the safest option is to follow section 8 when dealing with foreign deponents. If video commissioning is unavoidable, you need to record everything carefully identity checks, timestamps, screenshots and file a confirmatory affidavit from the commissioner. For important witnesses, it’s better to get a court-appointed commission under the rules to avoid later disputes.

If you are opposing an affidavit that was commissioned virtually, raise the objection early and explain why the proper process was not followed. Courts will usually look at whether the defect can be fixed easily and will weigh the interests of justice before deciding whether to exclude the evidence.

The bigger picture is that South African rules on commissioning affidavits are outdated. Courts and commentators agree that the law needs to change to allow properly regulated virtual commissioning. Until that happens, practitioners must either stick to the existing section 8 process or provide strong proof that any deviation was necessary and did not compromise the integrity of the evidence.

Africa’s Best Foods (Pty) Ltd v ED Food S.R.L [2025] ZAGPJHC 1008