Virtual Commissioning of An Affidavit

Altivex had bought a house and secured a home loan from Nedbank. Benade and Eksteen, directors of Altivex, signed Deeds of Surety for the debts of Altivex with Nedbank.  Altivex fell in arears with repayment of its home loan.  Nedbank issued summons against Altivex for the total outstanding amount and relied on the Deeds of Surety of Benade and Eksteen. Nedbank brought an application for summary judgment, which Altivex, Benade and Eksteen opposed.  The affidavit in support of the summary judgment had made use of remote commissioning (signing of an affidavit via a Commissioner of when the deponent does not in person sign before the Commissioner of Oaths). Altivex, Benade and Eksteen objected hereto. Nedbank submitted that the Court should condone the virtual commissioning.

The Court held that no legislative changes have been made to the Justices of the Peace and Commissioners of Oaths Act no 16 of 1963, or the Regulations. The Judge further commented that:

“One of the major legal advancements, since 1963, was the crystallisation of the doctrine of separation of powers in the Constitution. Incumbent to the doctrine is that the Judicial branch should not, under the guise of a general discretion or in the interest of justice, circumvent the authority of the legislature by condoning non-compliance with laws or regulations simply because said law or regulation may be considered archaic or outdated…..Simply put, discretions need to be exercised judicially.  If there are no facts placed before a Court upon which to exercise its discretion, it cannot make a generalised finding on the commonly held views of litigants (or even the Court itself) as to what is expedient and in keeping with the latest technological advancements….Under the circumstances, for a Court to exercise its discretion in favour of Applicants in each instance where virtual commissioning is used, regardless of a proper explanation for such non-compliance, would constitute impermissible judicial overreaching.”

Various further arguments where raised, none of which is pertinent to this discussion, but the Court held that there was no basis for it to exercise its discretion in favour of allowing non–compliance.

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