HOW TO COMMISSION AFFIDAVITS IN THE TIME OF SOCIAL DISTANCING

An affidavit is a written statement by an individual (“the deponent”), who swears that, to the best of the deponent’s knowledge and belief, the contents of the statement contained in the affidavit is both true and correct. As support for this contention that the contents of an affidavit are true and correct, a deponent must take a specific oath stating such.  

This oath is administered by a Commissioner of Oaths (“Commissioner”), who is appointed in terms of the Justices of the Peace and Commissioner of Oaths Act 16 of 1963 as read with the Regulations thereto (“the Act”).

Traditionally, the oath is administered by a Commissioner who is physically present with the deponent who then takes the oath and signs the affidavit in the presence of the Commissioner. This approach is in line with the requirements of the Act which states that “the deponent shall sign the declaration in the presence of the Commissioner of Oath”. (Emphasis our own)

With the outbreak of the COVID-19 pandemic, people all over the world have been forced to get used to previously unknown concepts such as “social distancing”, “self – isolation” and “lockdown”. In South Africa the Government enforced the application of these concepts making them law and part of the everyday lives of South Africans. While the initial “hard lockdown” which lasted from 26 March to 30 April 2020 has since been eased, the concept of social distancing remains. In addition, some people may find themselves in situations wherein they must ‘self – isolate’ for a period of time, usually 14 days. With such measures in place, the question invariably arises whether one can depose to an affidavit remotely and whether doing so would still comply with the provisions of the Act and regulations.

In our view, affidavits can be commissioned remotely.  This view is based the provisions contained in the Electronic Communications and Transactions Act 25 of 2002 (“the ECTA”) as well as case law as detailed below.

The ECTA contains provisions for the legal recognition of the electronic versions of paper – based concepts. What this means is that a paper document converted into electronic means can retain its validity. The ECTA states that documents usually required to be in writing would still meet this requirement if the document is in a digital form and accessible for subsequent use. The ECTA determines further that the “integrity” of such a document is the key factor for ensuring proper evidentiary weight of electronic evidence and must be assessed having regard to factors such that it remains unaltered, the purpose for which it was generated and other relevant factors. 

The High Court has suggested that, in complying with the words of the Act stating that a deponent must be “in the presence of” a Commissioner, this would be equivalent to being “within eyeshot”. This however becomes difficult if a person was for example in isolation. 

With this in mind, although the deponent and a Commissioner may not actually be physically in each other’s presence the provisions of the ECTA arguably makes it possible for a Commissioner to administer an oath so long as the parties and documents are presented in such a manner so as to allow them to “see” one another. The process set out below for the administration of the oath and commissioning of an affidavit is provided as a practical solution to this problem which we believe is sufficient for complying with the provisions of the Act. These seps are based on a recent High Court case wherein the Court accepted an affidavit being deposed to remotely before a Commissioner administering the oath, where the following were steps taken:

1.             The deponent, being in one location, was in possession of the unsigned affidavit. 

2.             The Commissioner, being in a different location, connected with the deponent by means of a video-conferencing facility (“VC”) which enabled them to see each other. 

3.             The deponent then proved his identity to the satisfaction of the Commissioner by means of permitting the Commissioner to view a suitable document over the VC.

4.             The Commissioner thereafter asked the specific questions of the deponent administering the oath in compliance with the provisions of the Act.

5.             The deponent then signed the affidavit in the required manner and the Commissioner watched the process via the VC. 

6.             The signed affidavit was then sent to Commissioner by e-mail who then printed and counter signed the affidavit as the Commissioner is required to do who in turn, e-mailed the signed version back to the deponent.  

The abovementioned process, in our view, complies with the provisions of the Act and provides persons a useful and alternative means to commission documents while still maintaining social distancing or isolation measures. 

[Prepared in conjunction with André Liebenberg - Candidate Attorney]