Johannesburg High Court Exercises Discretion To Admit Affidavits That Are "Virtually Commissioned"

The courts have dealt with affidavits being virtually commissioned on many occasions. The case of Africa's Best Foods (Pty) Ltd v ED Food S.R.L.  adds to this list. In this case, the full bench of the Johannesburg High Court re-affirmed the established principle that courts have the discretion to admit affidavits that are virtually commissioned if the interests of justice would be served by admitting such affidavits.

Background and Procedural Posture

Ongoing litigation between Africa's Best Foods and ED Food was settled by agreement, with Africa's Best Foods obliged to pay an outstanding balance of EUR28,000 it owed to ED Food. When Africa's Best Foods failed to pay the amount in full, ED Food instituted an application for payment.

Africa's Best Foods objected to ED Food's affidavits and argued that they were invalid because they were commissioned virtually by a South African commissioner of oaths, while the deponents were in Italy. Africa's Best Foods alleged that this contravened regulation 3(1) of the Regulations under the Justices of the Peace and Commissioners of Oaths Act, 1963 (“the Act”). The court a quo dismissed the objection, accepted the affidavits and granted judgment in favour of ED Food. Africa's Best Foods appealed the judgment to the full bench of the court on the basis that the affidavits should not have been admitted.

Issues for determination 

• Whether affidavits commissioned virtually (with deponents abroad and commissioners in South Africa) complies with regulation 3(1)'s requirement that a deponent must sign an affidavit “in the presence of” the commissioner. 
• Whether a South African commissioner of oaths, who acts in such capacity by virtue of his/her office, has the authority to administer an oath to a deponent outside South Africa in a virtual setting. 
• Whether the court a quo properly exercised its discretion to admit the affidavits, notwithstanding the non-compliance with regulation 3(1), on the basis of substantial compliance and interests of justice considerations. 

Key facts relating to commissioning

ED Food's affidavits were prepared by its South African attorneys. The deponents, in Italy, signed the affidavits during live video conferences with South African commissioners who verified their identities, administered the oath and completed the requisite certifications. 

Africa's Best Foods did not dispute the deponents' identities, the taking of the oath or compliance with regulations 1, 2 and 4. Its challenge focused on the lack of physical presence, as mandated by regulation 3(1).

Court's findings

The full bench endorsed the approach in Firstrand Bank Ltd v Briedenhann that “in the presence of” in regulation 3(1) requires physical proximity. Virtual commissioning is not presently sanctioned by the Act or Regulations and would require legislative amendment.

Authority of Commissioners in a virtual, cross-border setting

Section 8 of the Act deals with foreign officeholders administering oaths in their country, subject to authentication. This is not the source of authority for a South African commissioner, by virtue of his/her office, to administer oaths abroad.

Commissioners, that act as such by virtue of their office, are designated under section 6 of the Act “for” South Africa and within its territory. Section 7 confines commissioners (appointed by virtue of their office) to act within the area for which they are commissioners (for example, a South African attorney is appointed to administer oaths in South Africa). In a virtual session, the commissioners in this case acted from within South Africa but the defect was the lack of physical presence of the deponents before the commissioner as required by regulation 3(1).

Discretion to admit Affidavits despite non-compliance

The Regulations (save where couched negatively) are directory. Courts may accept affidavits that substantially comply with the Regulations, where the purposes of the Regulations are met and courts can do so by exercising judicial discretion in the interests of justice. 

The purposes of the Regulations were satisfied. The deponents were identified, the oath was duly administered, the correct documents were signed and the commissioning process was recorded and explained. 

The court found that requiring the affidavits to be re-commissioned would cause delay and costs without advancing justice.

Conclusion

The appeal was dismissed. The order requiring Africa's Best Foods to pay €28,000 plus interest and costs was affirmed, with the costs of the appeal awarded against Africa's Best Foods. 

Virtual commissioning under the current South African Regulations is not, as a matter of strict compliance, permitted: “in the presence of” in regulation 3(1) means physical presence. Legislative reform is desirable but has not yet occurred.

Section 8 provides a distinct route for affidavits taken before designated foreign officeholders abroad, subject to authentication. It does not expand South African ex officio commissioners' powers extraterritorially. 

The Regulations governing oaths are generally directory. Courts retain a judicial discretion to admit non-compliant affidavits where there is substantial compliance with the Regulations and the interests of justice would be served, focusing on the purpose of the Regulations (identity verification, proper administration of the oath and assurance of authenticity). 

Practical, justice-centred adjudication is appropriate: where identity, oath-taking and certification are reliably established and no prejudice is shown, non-compliance with physical presence may be condoned to avoid procedural gamesmanship and unnecessary delay. 

These principles reinforce that while strict requirements still govern commissioning, South African courts may, in appropriate circumstances, accept virtually commissioned affidavits, where the evidential guarantees underlying the Regulations are satisfied and justice so demands. 

As technology has evolved in the modern world, there is, in our humble submission, a need for the legislature to amend the Act, to allow South African commissioners to commission affidavits signed outside South Africa, for use in a South African court, provided that the commissioner can identify the deponent to the affidavit, the document that was being signed, the oath could be administered and the whole virtual commissioning process is recorded. This will greatly assist litigants in having to avoid rather technical fights about whether the Act and Regulations were complied with, when the affidavits were signed.

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