Mr Donald Msiza

The matter in FirstRand Bank Ltd v Briedenhann 2022 (5) SA 215 (ECGq) was brought to the court by the plaintiff in application for a default judgment for money owed to it by the defendant in terms of a credit/loan agreement entered between the parties, of which the agreement was not in dispute before the court.

The court took issue with two affidavits submitted by the plaintiff in its papers. Particularly that the said affidavits were electronically signed and virtually commissioned and, therefore, invited the applicant to make submissions in relation to the acceptance or recognition by a court of a virtual mode of administration of oath. The applicant’s submissions relied on the provisions of the Electronic Communications and Transactions Act 25 of 2002 (the ECTA) whose provisions govern the administration and acceptance of electronic signatures, particularly ss 13 and 18 of the ECTA.

The issue

The plaintiff in this matter 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 the plaintiff developed with LexisNexis. The system has video conferencing and document-encryption functions and allows the commissioner to satisfy themselves of the identity and understanding (in relation to the contents of the affidavit) of the deponent. Both parties can sign the affidavit, thereafter the deponent attaches their electronic signature, while the commissioner attaches their advanced signature as required by s 18(1) of the ECTA.

The court’s main contention hinged on 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, in specificity, regs 1 through to 4. Regulations 3 and 4 read, respectively, as follows:

‘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.

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’ (court’s italics).

The court’s disposition on the interpretation of the said regulations is pivotal. It interpreted and understood reg 3(1) to mean that the ‘deponent is required to append their signature to the declaration in the physical presence or proximity of the commissioner’. As relates to regs 2, 3, and 4, the court held: ‘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.’

The court further considered the applicant’s reliance on the provisions of the ECTA, rightly agreeing with the said submissions 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, such usage of digital signatures on affidavits, the court held, is subject to deposition in accordance with reg 3(1).

Thus, the court was seized with the question: Whether, for purposes of reg 3(1), a video or virtual link is sufficient?

Previously decided cases

In answering the question as to whether the law makes provision for the virtual commissioning of affidavits in South Africa the court considered and analysed three leading cases, namely S v Munn 1973 (3) SA 734 (NC), Mtembu v R 1940 NPD 7 and R v Sopete 1950 (3) SA 769 (E). In all three matters the courts respectively held that the regulations are directive and in special circumstances, especially where failure to comply relates to form (and not substance) (see Ladybrand Hotels (Pty) Ltd v Stellenbosch Farmers’ Winery Ltd 1974 (1) SA 490 (O)) the court may allow for deviation from their strict compliance.

The court further considered the decision in Knuttel NO and Others v Bhana and Others [2022] 2 All SA 201 (GJ) in which the court considered the admissibility of an affidavit deposed to by video-conferencing and held that ‘the purpose of the declaration by the commissioner is to provide assurance that the deponent has indeed taken the oath, knows and understands its effect and is the person who signed the declaration’. However, the court noted that the finding in favour of admitting a virtually deposed affidavit in Knuttel was essentially obiter since the allegations set out therein were also set out in another affidavit which was ‘properly’ deposed and further that the deponent to the affidavit was COVID-19 positive.

The court, exercising its discretion to dispense with the strict compliance of the regulations insofar as they have been substantially adhered to, accordingly held that the two affidavits should be admitted, and the default judgment be granted as prayed for.

The decision of the court

The court held that considering the wreckage wrought by COVID-19 pandemic, technological innovation is important in facilitating the ease of commission and deposing to affidavits and by extension address ‘the inherent risks associated with fraudulent document attestation in the ordinary manner and which the regulations seek to address’. However, that it is not for the court to legislate. The court held in this regard: ‘However, where, as in the present situation, legislative action would be required to recognise and legitimise the use of technologies such as those proposed by the plaintiff, it is to the legislature or to the Minister of Justice in this case, that persuasion should be directed’. Accordingly, it held that in its opinion the plaintiff should have complied with the regulations, since unlike in Knuttel, neither the deponent nor the commissioner was COVID-19 positive and, therefore, rendering it impossible to physically administer the oath.

The court only admitted the affidavits because the regulations were substantially complied with, it said, in doing so 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. … There is after all no doubt that the deponents did take the prescribed oath and that they affirmed doing so’.

Conclusion

In conclusion, the Justices of the Peace and Commissioners of Oaths Act and the relevant regulations have to be amended to be brought up to speed with the times of COVID-19 and beyond. The ECTA already provides for the speedier finalisation of the digital transactions through the provision of the usage of electronic signatures and where required by law, advanced electronic signatures, there is no reason why the Justices of the Peace and Commissioners of Oaths Act does not provide for the virtual deposition and subsequent commissioning of oaths within the framework of the ECTA, very much like the plaintiff in this matter does.

This article was first published in De Rebus in 2022 (Oct) DR 6.