Modernising The Commissioning Of Oaths: The Draft 2026 Regulations

Introduction

On 31 July 2026, the Department of Justice and Constitutional Development published for public comment the draft Regulations Governing the Administering of an Oath or Affirmation, 2026, issued in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963). These draft regulations are intended to repeal and replace the Regulations Governing the Administering of an Oath or Affirmation, 1972, which have governed the commissioning process for over five decades. Among the most significant innovations is Regulation 5, which introduces a framework for the electronic commissioning of oaths and affirmations through audio-visual communication.

This piece examines the legal difficulties that have arisen under the existing regulatory framework regarding remote and electronic commissioning, considers the key judicial authorities on point, and assesses how the draft regulations seek to resolve these longstanding issues.

The problem: physical presence under the 1972 Regulations

The 1972 Regulations required that an oath or affirmation be administered by a commissioner of oaths in the physical presence of the deponent. As South African society moved increasingly towards digital communication — accelerated by the COVID-19 pandemic — the rigid requirement of physical co-presence became a significant impediment to the efficient administration of justice. Parties located abroad, those in remote areas, and persons unable to attend in person faced practical difficulties in having affidavits properly commissioned.

The question of whether “in the presence of” could be interpreted to encompass electronic or audio-visual presence became the subject of contested litigation.

The case law

The [Applicant] v The Minister of Justice and Correctional Services [2024] ZAGPPHC 446

The most authoritative pronouncement on this issue came from the Gauteng Division of the High Court in “The Applicant” v The Minister of Justice and Correctional Services. The applicant sought a declaratory order that the phrase “in the presence of” in the 1972 Regulations could be interpreted to include administration of an oath by live electronic communication. The court dismissed the application, holding that such an interpretation would require it to disregard the clear and unambiguous wording of the regulations.

The judgment considered the interplay between the Justices of the Peace and Commissioners of Oaths Act, the oath regulations, and section 13 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002), ultimately concluding that the physical-presence requirement could not be displaced by electronic-communications legislation alone. The effect of this judgment was to close the door on any general reinterpretation of the existing regulations to accommodate remote commissioning — making legislative intervention the only available path. (The applicant in this matter was an international legal information services provider.)

The Applicant (Italian entity) v The Respondent (South African entity)

A contrasting approach emerged in an unreported decision heard in the Gauteng Local Division (Johannesburg). In that matter, the respondent challenged the applicant’s founding and confirmatory affidavits on the basis that they had been commissioned via video conference call, with the deponents situated in Italy and the commissioner of oaths in South Africa.

The court declined to strike the affidavits, finding that there had been substantial compliance with the Act and regulations, supported by a comprehensive affidavit from the commissioner explaining the procedure followed. The court held that the absence of physical presence was a technicality that should not obstruct the speedy and effectual administration of justice.

While this decision offered a pragmatic solution in the individual case, it did so on the basis of substantial compliance rather than as a matter of general legal entitlement — leaving the broader legal position uncertain and dependent on judicial discretion.

The solution: Regulation 5 of the Draft 2026 Regulations

The draft 2026 Regulations address this impasse directly and comprehensively. Regulation 5(1) provides that where a document requiring an oath or affirmation is submitted electronically, through an online portal, or via any other legitimate electronic platform, the commissioner may administer the oath or affirmation through an audio-visual communication with the deponent.

Critically, Regulation 5(3) provides that the administration of an oath or affirmation in such circumstances “is in all respects valid as if it was administered in the physical presence of the commissioner”. This equivalence provision directly overturns the interpretive barrier identified in LexisNexis and places remote commissioning on a secure statutory footing.

The draft regulations are further supported by modernised definitions. The definition of “affidavit” now expressly contemplates a statement made “whether in the physical presence of each other or not”. The definition of “sign” has been expanded to include electronic signatures — comprising the initial or name of the person in any font, style, or size intended to serve as a signature — as well as advanced electronic signatures under the Electronic Communications and Transactions Act, 2002.

Regulation 5(2)(b) further provides that a typed name or surname at the space provided for the deponent’s signature is deemed to constitute the deponent’s signature for purposes of the electronic commissioning process. Where a document was signed before the oath is administered, Regulation 5(2)(a) requires the commissioner to ascertain that the deponent is the person who signed the document before proceeding.

Significance and remaining considerations

The draft regulations represent a welcome and necessary modernisation of South Africa’s oath-taking framework. They resolve the legal uncertainty that gave rise to the High Court litigation discussed above, provide a general statutory basis for what the Johannesburg decision permitted only on a case-by-case substantial-compliance basis, and brings the commissioning process into alignment with the realities of modern digital communication.

However, certain matters may warrant further attention during the public comment period. The regulations do not prescribe minimum technical standards for the electronic platforms to be used, nor do they mandate recording of the audio-visual session or maintenance of an audit trail. The identity verification requirement in Regulation 5(2)(a) — that the commissioner must “ascertain” the deponent’s identity — is expressed at a high level of generality without specifying acceptable methods of verification. These are matters that could usefully be addressed either in the regulations themselves or through supplementary practice directives, to ensure that the new framework operates with the integrity and reliability that the administration of justice demands.

Conclusion

The draft Regulations Governing the Administering of an Oath or Affirmation, 2026, mark a significant step forward in accommodating electronic commissioning within South African law.

By providing express statutory authority for remote administration of oaths through audio-visual communication, they resolve a gap that the courts were unable to fill through interpretation alone. Public comments are due by 31 August 2026, and interested parties would do well to engage with the draft — particularly on the procedural safeguards that will determine whether this reform achieves its potential in practice.