When we have any documentation commissioned, we essentially swear, by providing proper identification, before someone who has the authority to administer an oath (such as a police official, an attorney, a charted accountant, etc.), that we understand the content of the documentation and find it binding on our conscience. The commissioner confirms this by placing his/her signature and stamp. Usually this is a process done face to face but with these unprecedented times of living in lockdown and trying to reduce the spread of infection, it may be wise to consider alternative means of commissioning.

In South Africa, the commissioning of documents is governed by the Justices of the Peace of Commissioners of Oaths Act 16 of 1963 (“the Act”), and under section 7 the commissioner has the power to:

administer an oath or affirmation to or take a solemn or attested declaration from any person.”

How an oath is normally administered

Essentially, the Commissioner of Oaths would meet the deponent (the person taking the oath) in person and ask him/her the following questions;

  1. Whether he/she knows and understands the contents of the declaration;
  2. whether he/she has any objection to taking the prescribed oath; and
  3. whether he/she considers the prescribed oath to be binding on his/her conscience.

A commissioner must ask a deponent to recite the words pertaining to the oath/affirmation, and then, according to the Act, “the deponent shall sign the declaration in the presence of the Commissioner of Oaths”.  However, in Gulyas v Minister of Law and Order[1], the court held that ‘in the presence of’ can be seen as ‘within eyeshot’.

Virtual Commissioning

If the person taking the oath confirms that he/she understands the contents of a declaration and that he/she is making a sworn statement under oath, and further that the contents of the documentation true, swearing this remotely over a video call in front of a commissioner technically should not be seen to take away from the truthfulness of the oath or its legal effect.

In our opinion, only would the virtual commissioning of documents be beneficial now because of the Coronavirus pandemic, but also in the event documentation needs to be deposed to by an individual currently outside the country.

For instance; in the case of Uramin (Incorporated in British Columbia) t/a Areva Resources Southern Africa v Perie[2] , the witnesses in the matter were overseas and therefore could not be physically present in court, but the court allowed for the trial to be heard viva voce through video conferencing and then accepted evidence by way of affidavit. This goes to show that in the future we could use modern technology to make legal processes easier and more accessible.

In the case of Elchin Mammadov and Vugar Dadashov v Jan Stefanus Stander and Three Others,[3] the court allowed for the following steps to be taken for virtual commissioning:

  • The affidavit is sent to the deponent by e-mail and the deponent prints it.
  • The deponent proves his or her identity by showing a suitable document to the commissioner over video technology.
  • The commissioner then asks the three questions (see above) and if the answers are all appropriate, watches the deponent sign the document on the video call.
  • The deponent then scans it through on email (or photographs and sends it by, for example, WhatsApp) to the commissioner.
  • The commissioner then prints the document, checks to confirm that is the same document as sent to the deponent, and then counter-initials and signs where required.

If the document is to be returned to the deponent to use, it was suggested that the commissioner confirms on return email that he/she saw the deponent via video technology on the specific date, confirms his or her identity and that the deponent confirmed the necessary questions.

It was also suggested that should this document be used in court; the commissioner should confirm to the court by means of an affidavit that data integrity was maintained at all times during this process.

ECTA

The Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) allows for the facilitation and enforceability of electronic transactions and services.

If we look at Section 13 (1) – (2) of ECTA, it states:

“(1): Where the signature of a person is required by law and such law does not

specify the type of signature, that requirement in relation to a data message is met only

if an advanced electronic signature is used.

(2) Subject to subsection (1) an electronic signature is not without legal force and

effect merely on the grounds that it is in electronic form.”

This could potentially broaden the enforceability of an electronic signature when one is deposing to any document or affidavit electronically, in front of a commissioner of oaths.

An advanced electronic signature is defined in ECTA as follows:

“an electronic signature which results from a process which has been accredited by the Authority as provided for in Section 37. “

This accreditation process as set out in section 37 of ECTA is quite extensive, and consequently there are few providers of these accreditation services. As a result, very few South Africans are in a position where they can use advanced electronic signatures and doing so will thus not be as easy as merely “signing something electronically” by adding an electronic signature. This article will not go into further detail on this process, but at the end of the day, should it be required that a deponent and commissioner aa an electronic signature, it will be far harder to use this.

For virtual commissioning to make life easier for all parties involved, an electronic signature in the normal sense of the word should be allowed rather than the requirement for an advanced signature.

Conclusion

As we are living in a technologically advanced world and we can now use “virtual” means for commissioning and giving evidence, it is important to be mindful of the risks involved such as fraud.

Although virtual commissioning might not yet be norm in South Africa, it is a helpful process,  especially given the pandemic and a necessity to mitigate the risk of spread of the virus by not being in the physical presence of the deponent or the commissioner of oaths.

 

 

[1] [1986] 4 All SA 357 (C)

[2] 2017 (1) SA 236

[3] (GP) (unreported case no 100608/15).