From Ink to Link: Court Champions Remote Affidavit Commissioning

An Enlightened Ruling

Lekhuleni J astutely noted, “The modernisation of the civil litigation process will provide several advantages, including reduced costs, prevention of unreasonable delays, and a quicker resolution of cases.” This perspective underscores the importance of adapting legal frameworks to contemporary needs. The ability to sign and commission affidavits through platforms like Zoom not only saves time but also minimizes travel expenses, expediting case finalizations significantly.

Lekhuleni J further answered the question of whether the Applicant’s affidavit commissioned via an audiovisual link constituted a valid affidavit. In his judgement, he noted that it is trite that a court has discretion to refuse to receive an affidavit attested otherwise than in accordance with the regulations depending upon whether substantial compliance with them has been proved or not. It is for the court, after considering the totality of evidence, to determine whether as a fact substantial compliance with the regulations is proved. Whether there is such compliance is a matter of fact, not of law. Although it was held that the Applicant’s affidavit was commissioned unconventionally whilst the deponent was outside the republic by a commissioner of oaths in the republic, it was decided that there was substantial compliance with the Act and the Regulations.

The deponent produced a form of identification, the commissioner of oaths, who is a practicing advocate, confirmed in a confirmatory affidavit that he had no interest in the matter, and furthermore the commissioner stated that apart from the medium of Zoom being used, compliance has occurred with the regulations governing administering oaths and affirmations. The commissioner also attested that he was satisfied that the signature on the affidavit belonged to the Applicant. In other words, the Applicant signed the affidavit virtually in the sight of the commissioner of oaths.

A Call for Legislative Change

The court’s decision in VJS v SH reinforces that while remote commissioning is currently permissible under certain conditions, it is inherently critical for the Justices of the Peace and Commissioners of Oaths Act and its associated regulations to be revised. The existing law stipulates that a deponent must sign an affidavit “in the presence of” a commissioner of oaths. However, as technology evolves, so too must our legal systems. The court expressed that “it is time for the Act to be updated” to allow for electronic signing and commissioning of affidavits.

Advantages of Remote Commissioning

1. Accessibility: Remote commissioning removes geographical barriers, allowing individuals who are unable to attend in person – due to health issues or travel constraints – to participate in legal processes.
2. Cost-Effectiveness: By eliminating travel requirements, remote commissioning reduces costs associated with commuting to a commissioner’s office.
3. Efficiency: The ability to conduct these processes virtually can lead to faster resolutions in legal matters, aligning with modern expectations for timely justice.

Conclusion

The ruling in VJS v SH not only validates remote affidavit commissioning but also serves as a call for the Act to be updated. As we navigate an increasingly digital world, it is essential that our legal frameworks evolve accordingly. Embracing technology in legal practices will enhance accessibility, reduce costs, and ultimately lead to a more efficient judicial system.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.