In a recent case of Firstrand Bank Limited v Briedenhann (3690/2021) [2022] ZAECQBHC 6; 2022 (5) SA 215, the Eastern Cape High Court ruled on the admissibility of two affidavits submitted in the course of an application for default judgment, both of which affidavits had been electronically signed and virtually commissioned. The Court therefore invited the Applicant to make submissions in respect of the acceptance or recognition by the Court of the virtual and electronic administration of the prescribed commissioners oath.
At the outset, it appeared common cause that the Applicant had the affidavits in question deposed to and commissioned in the virtual presence of both the deponent and commissioner using a secure document-signing system, which allowed video conferencing and document-encryption functions that enabled the commissioner to satisfy themselves of the identity and understanding of the deponent. This method of commissioning was adopted by the Applicant during COVID-19 to limit the spread of the virus. Both parties were further able to sign the affidavit in a process whereby the deponent attaches their electronic signature, while the commissioner attaches their advanced signature as required by s 18(1) of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”).
As highlighted by both the Applicant and the Court, the core of this issue therefore turned on the interpretation of the Regulations Governing the Administration of an Oath or Affirmation promulgated in terms of s 10 of the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963, as amended (“Commissioners Regulations”), which states, inter alia, that –
“Regulation 3
1. The deponent shall sign the declaration in the presence of the commissioner of oaths.
2. If the deponent cannot write he shall in the presence of the commissioner of oaths affix his mark at the foot of the declaration: Provided that if the commissioner of oaths has any doubt as to the deponent’s inability to write he shall require such inability to be certified at the foot of the declaration by some other trustworthy person.
Regulation 4
1. Below the deponent’s signature or mark the commissioner of oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration.
2. The commissioner of oaths shall –
a. sign the declaration and print his full name and business address below his signature; and
b. state his designation and area for which he holds his appointment, or the office held by him if he holds his appointment ex officio.”
The Applicant further relied on section 18 of the ECTA, which states, inter alia, that
“18. (1) Where a law requires a signature, statement or document to be notarised, to acknowledged, verified or made under oath, that requirement is met if the advanced electronic signature of the person authorised to perform those acts is attached to, incorporated in or logically associated with the electronic or signature or data message”.
Upon hearing submissions in respect of the ECTA, the Court agreed with the Applicant that electronic signatures may be used on affidavits and advanced electronic signatures where so required by the law in terms of ss 13(3) and 18(1) of the ECTA. However the Court held that, in the present instance, such usage of digital signatures on affidavits is subject to the interpretation of deposition in accordance with regulation 3(1) of the Commissioners Regulations. In this regard, and in contrast to the Applicant’s submissions in this regard, the Court held that –
“The language of Regulation 3(1) when read in the context of the Regulations as a whole, suggests that the deponent is required to append their signature to the declaration in the physical presence or proximity of the commissioner. This accords with the concern for place, insofar as the exercise of the authority to administer an oath is concerned, as appears from the Act. Regulations 2, 3 and 4 must be read as a whole since they provide for the manner in which an oath or affirmation is administered”
“The process follows a logical sequence which requires the commissioner to satisfy themselves that the deponent understands the nature of the oath; administer it; obtain confirmation of the taking of the oath by signature on the document and thereafter, to append their signature with details of place, area and designation’ and concluded that the whole process must take place in the presence of the commissioner, concluding that ‘the plain meaning of the expression “in the presence of” within its context in regulation 3(1), requires that the deponent to an affidavit takes the oath and signs the declaration in physical proximity to the commissioner”.
In light of the above, the Court disagreed with the Applicant that the Regulations could be interpreted to apply to a deposition that takes place virtually, or in the “virtual presence” of the commissioner. It was therefore argued that the Court should, in its discretion and on consideration of the substantial compliance with the requisite provisions, admit the affidavits deposed to virtually.
However, the Court maintained that –
“In this matter the plaintiff elected to employ a new technology platform to digitize its preparation of affidavits for use in legal recoveries. Whilst it broadly framed its decision to do so in the context of the Covid 19 pandemic, its election represents a particular choice of business innovation. It is entirely free to do so…”
“The advantages of the system used by the plaintiff are, however, not a basis upon which an existing Regulation may be ignored. It is, in my view, not open to a person to elect to follow a different mode of oath administration to that which is statutorily regulated. That is true even if in doing so every effort is made to substantially comply. The regulations stipulate that the declaration is to be signed in the presence of the commissioner. Unless that cannot be achieved, the Regulations must be followed. The fact that the Regulation is directory does not mean that a party can set out to achieve substantial compliance with such regulation rather than to comply with its requirements”
On the basis of this reasoning, the Court acknowledged that the advancements in technology, while logical and effective, could not be used as an argument to achieve a purpose directly contradictory to that contained in the Commissioners Regulations. While the Courts possesses the authority to make novel innovations or adaptions in the interests of justice, to find contrary to the regulations would amount to the Court stepping into the role of the legislature, which would require the consideration of numerous polices and legislative impacts, which is best left to the relevant Minister in the Executive.
Notwithstanding the above, the court concluded by allowing the admission of the affidavits in this instance, stating that –
“There can be no doubt that the evidence placed before me establishes that the purposes of Regulation 3(1) have been met. To refuse to admit the affidavits would, of course, highlight the importance of adhering to the principle of the rule of law. That point is, I believe, made plain in this judgment. To require the plaintiff to commence its application for default judgment afresh upon affidavits which would contain the same allegations but which are signed in the presence of a commissioner of oaths would not, in my view, be in the interests of justice. There is after all no doubt that the deponents did take the prescribed oath and that they affirmed doing so. It would therefore serve no purpose other than to delay the finalisation of this matter with an inevitable escalation of costs, not to receive the affidavits. In the circumstances, I accept the affidavits deposed to in the manner described in this judgment as complying in substance with the provisions of the Regulations.”
It must be noted that this ruling was granted on a novel consideration of factors specific to the case at hand. It is therefore unlikely that future parties could rely on this judgment to advance the acceptance of virtually commissioned affidavits, given that the Court specifically recognised the necessity of adhering to the current prescripts of the Commissioners Regulations and the requirement of physical proximity to the commissioner when signing.
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