NEWS AND INSIGHTS

Virtual Commissioning of Affidavits: Where Do We Stand Now?

16 October 2025

AUTHOR: SIENNA BARNES

The Justice of the Peace and Commissioners of Oaths Act 16 of 1963, specifically section 7, authorises commissioners of oaths to administer affirmations, oaths, attested declarations, and solemn statements. Complementing this, Regulation 3 of the Regulations Governing the Administration of an Oath or Affirmation requires that a deponent must sign an affidavit in the presence of the commissioner of oaths. During the COVID-19 pandemic, this requirement was temporarily relaxed. With lockdowns and social distancing protocols in place, virtual commissioning was permitted out of necessity. However, now that pandemic-related restrictions are behind us and society has largely returned to normal, many are left wondering: is virtual commissioning still valid?

At the centre of the debate is the interpretation of the phrase “in the presence of.” Courts across South Africa have interpreted this differently, leading to conflicting judgments and a growing sense of uncertainty within the legal community.

In the case of S v Munn, the court emphasised that the purpose of administering an oath is to dignify the process and create indisputable evidence that the statement was sworn. The court also held that the regulations are directory rather than peremptory, meaning that substantial compliance, if it meets the purpose of the regulation, may be sufficient even in the absence of strict formal compliance. This principle of substantial compliance has featured prominently in more recent judgments. In Africa’s Best Foods (Pty) Ltd v ED Food S.R.L, affidavits were signed by deponents in Italy but commissioned via video conference in South Africa. The documents’ admissibility was challenged under Rule 63 of the Uniform Rules of Court. However, Moultrie AJ held that if a court is satisfied that the documents are sufficiently authenticated, they can be admitted. The judgment supported the idea that evidence of the deponent signing under the commissioner’s observation virtually, may satisfy the requirement of substantial compliance. A similar conclusion was reached in VJS v SH, where the Western Cape High Court had to determine whether an affidavit deposed to virtually complied with the Act. Lekhuleni J held that the principles from S v Munn remain relevant. A deponent who understands the act being performed and appears via an audiovisual link can, arguably, satisfy the requirement of being “present”.

However, other courts have taken a more rigid approach. In Lexis Nexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services, the court declined to interpret Regulation 3 broadly enough to include virtual presence. While the review was dismissed, the case highlighted the disconnect between outdated legislation and rapidly advancing technology. This stricter interpretation was reinforced in FirstRand Bank Limited v Briedenhann. Here, Goosen J held that virtual presence does not satisfy the requirements of the Act and Regulations, which were drafted in 1963 long before the advent of the internet, video conferencing, or digital tools. The court interpreted “in the presence” in its literal, physical sense, rejecting the notion that a live video stream could fulfill the requirement. In SB Guarantee Company (Pty) Ltd v De Sousa, the court again addressed the notion of substantial compliance. While it confirmed that courts have discretion to accept affidavits that substantially comply with the regulations, it also made it clear that parties themselves cannot simply choose to comply partially. Full compliance remains the default expectation.

The question is no longer whether technology should play a role in legal processes, it already does. The introduction of digital systems like Court Online and CaseLines has shown that the judiciary is capable of evolving with the times. Amending the Act and Regulations to accommodate virtual commissioning would align legal procedure with contemporary practice. It could reduce costs, minimise delays caused by unforeseen circumstances (such as pandemics or remote locations), and contribute to a more accessible and efficient justice system especially one already under pressure to deliver timely justice. Modernising the framework would not undermine procedural integrity. Rather, it would reflect a transformative approach that meets the needs of a changing society while preserving the principles of fairness and justice.

Conclusion

Until the legislature amends the Act and Regulations, full compliance with the existing legal requirements remains the safest option. With conflicting case law and uncertainty surrounding the validity of virtually commissioned affidavits, parties should avoid unnecessary risk. A seemingly minor procedural misstep could lead to affidavits being declared inadmissible or give rise to objections by opposing counsel. Clarity will only be achieved when the law is updated to reflect the realities of modern practice. Until then, caution remains key.