In the case of Mogale v BMW Finance Services (South Africa) (Pty) Ltd, the Limpopo Division of the High Court of South Africa, Polokwane considered whether the irregular commissioning of an affidavit should be condoned.
Background
The applicant, Mr Mogale, raised a dispute over the answering affidavit deposed to by Mr Lubbe, a representative of the respondent, BMW Finance Services. In the answering affidavit, Mr Lubbe identified himself as male. However, the Commissioner of Oaths certificate attached to the affidavit suggested in one part that he was male, and in another, that he was female.
Mr Mogale argued that the difference in gender meant that the affidavit was not commissioned in the prescribed manner. Mr Mogale alleged that it created uncertainty about the identity of the deponent and prejudiced his case. Mr Mogale also suggested that this made it highly probable that the prescribed oath was not administered by the Commissioner of Oaths in the presence of Mr Lubbe.
Mr Mogale also contended that the answering affidavit did not comply with the Regulations made under the Justice of the Peace and Commissioner of Oaths Act 16 of 1963 and that the affidavit was delivered outside the required period without a condonation application.
Legal framework
Regulation 3(1) states that a deponent shall sign a declaration in the presence of a Commissioner of Oaths. Regulation 4(1) states that below the deponent's signature or mark, a Commissioner of Oaths shall certify that the deponent acknowledged that he/she knows and understands the contents of the declaration.
Regulations 3(1) and 4(1) obliges a Commissioner of Oaths to properly identify the gender of a deponent. Should the Commissioner fail to, the court will be reluctant to assume that the affidavit is regular. Accordingly, the proper identification of the gender of the deponent in the Commissioner of Oaths certificate is imperative.
Court's findings
The court reiterated the principle that an affidavit is a written statement sworn to by a deponent in the presence of and before a Commissioner of Oaths. Where a Commissioner of Oaths fails to indicate the gender of the deponent, the inference will be that the deponent did not appear in person before a Commissioner of Oaths.
The court has a discretion to accept/refuse an affidavit, depending on whether there is substantial compliance with the Regulations. The court found that there was a disjoint between Mr Lubbe's declaration and the Commissioner of Oaths certificate. The court declined to condone non-compliance with the Regulations and found that the answering affidavit was not properly commissioned and therefore irregular.
Conclusion
Since the court found that the answering affidavit was irregular, it was unnecessary to determine if the late filing of the answering affidavit should be condoned. BMW Finance Services was provided with an indulgence to correct the error and file a re-attested supplemented affidavit.
BMW Finance Services was ordered to pay the costs of Mr Mogale's application over the irregularities pertaining to the answering affidavit.
Even though the irregularity was not condoned, the application only had a dilatory effect as the court permitted BMW Finance Services to re-sign the affidavit before a Commissioner of Oaths and to correct the error. These sorts of technical points therefore only serve to increase costs and did not result in a complete defence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
