In the litigation process, an affidavit is a written statement made by an individual under oath, in which the individual concerned swears and/or declares to the relevant court that the information they are providing is a true and accurate representation, and therefore legally binding.
Under South African law, the formalities for deposing an affidavit are prescribed by the Justice of the Peace and Commissioners of Oaths Act 16 of 1963 (the “Act”) and the Regulations Governing the Administration of an Oath or Affirmation (the “Regulations”). The Act and Regulations require that a deponent must sign their affidavit in the presence of a Commissioner of Oaths and acknowledge the prescribed oath or declaration as being legally binding.
Should an affidavit be commissioned away from the physical presence of a commissioner (i.e. virtually via Zoom or Microsoft Teams), an opposing party could potentially argue that the affidavit does not legally comply with the formal requirements prescribed in the Act. If that legal argument succeeds, the affidavit could consequently be treated as potentially not valid by the relevant Court, consequently nullifying any potential defence or claims raised in that document.
As archaic as this legal requirement may be, especially in light of the predominance of virtual proceedings in other jurisdictions, courts in South Africa still continue to view this requirement as binding. However, this requirement has recently become a heated topic of debate among various judges.
In the matter of Knuttel NO and Others v Shana and Others (2021), the Court considered whether an affidavit commissioned virtually due to the deponent having contracted COVID-19 would be deemed as compliant in terms of the Act. Having considered all relevant factors, the Court concluded that there had been substantial compliance when it came to the commissioning of the affidavit, and hence the affidavit was determined to have been validly deposed to by the deponent.
In the judgment of ED Food v Africa’s Best Foods (2022), the Court was tasked with deciding whether affidavits deposed over video conferencing were substantially compliant with the Act. In this case, the Court relied on previous judgements such as Liebenberg N.O. and Others v Bergrivier Municipality (2013) (CC) 1 and Uramin t/a Areva Resources Southern Africa v Perie (2017) 2 to justify its reasoning that courts should adapt to the modern trend of technology. The Court ultimately held that given the circumstances surrounding the case, there was substantial compliance with the Act and Regulations and therefore determined that such affidavits, although technically not compliant, would be accepted.
In the most recent case of VJS v SH (2024), a similar situation arose in which the Court considered whether an affidavit, which had been virtually deposed to, could be considered compliant in terms of the Act. Notably, the judge stated in the ruling that although cases such as S v Munn (1973) justify the requirement of physical presence as necessary to ensure that the witness fully understands the solemnity of the act they are performing, the principle remains the same whether the witness participates virtually or through an audio-visual link.
As observed by the Court in this case, the applicable Act was passed over 60 years ago when video conferencing and the internet were not yet envisaged, and the truth of the matter remains that almost every type of civil application across the various courts of South Africa requires a signed and commissioned affidavit. The Court further reiterated that the modernisation of the civil litigation process within South Africa would provide several advantages including reduced costs, the prevention of unreasonable delays and the quicker resolution of cases. In closing, the Court called for the applicable Regulations to be amended to bring them in line with modern technology trends by allowing the electronic signing and commissioning of affidavits.
Given the above, it appears the courts are adopting a stance that favours a more liberal interpretation of the applicable Act and Regulations. This stance has been adopted despite the potential argument raised in some recent cases 3 that it is not for a court to develop legislation, which is the jurisdiction of the legislature according to the doctrine of the Separation of Powers.
As emphasised by the Court’s call to amend the Regulations in VJS v SH, adopting a more modern approach to commissioning affidavits could provide many multi-national businesses who frequently litigate in South Africa a more time efficient and simplified means of deposing affidavits. Such a change would, in turn, result in a reduction of costs usually associated with the laborious process of commissioning, and would offer Courts, international clients and the overburdened South African legal system a much-needed reprieve.
