Are virtually commissioned affidavits valid?

Image source: Andrei Krauchuk – 123RF.com

The pandemic propelled video conferencing into an indispensable tool for both professional and personal interactions, reshaping the way we perceive and engage with virtual communication platforms. Virtual platforms have since been utilised for all manner of activities, sometimes challenging the traditional way of doing things. One such challenge arose recently in the Gauteng Division of the High Court in ED Foods SRL v Africa’s Best (Pty) Ltd where the Court had to decide whether an affidavit could be commissioned virtually.

Administration of oaths

Africa’s Best challenged ED Foods’ affidavits on the basis that they were commissioned virtually and therefore were not signed "in the presence of the Commissioner of Oaths" as required by the regulations that govern the administration of an oath. Africa’s Best contended that the affidavits were irregular and should be set aside.

The affidavits in question were commissioned on 8 December 2021 using the Zoom video conference call platform where the Commissioner could hear, speak to, and see the deponents to the affidavits, who were in Italy. The affidavits were emailed to the deponents before the video call. During the video call the Commissioner verified the identity of the deponents by requesting and viewing their identification documents which were held up to the camera.

The Commissioner then confirmed with the deponents that the affidavits printed out by them for signature were the same transmitted by email. After that, the Commissioner administered the oath and the affidavits were signed. The affidavits were then scanned and emailed back to the Commissioner. Upon receipt, the Commissioner checked that it was the same affidavit sent to the deponents, signed the affidavits, and appended his certification stamp.

In the presence of...

The Court considered the meaning of administering the oath in the presence of the commissioner. The Oxford Dictionary gives multiple meanings for the word "presence" which includes, "the place or space around or in front of a person". The phrase "in the presence of" suggests "in the company of, observed by".

The Court pointed out that the failure to comply with statutory provisions does not necessarily render actions as invalid, provided there is substantial compliance taking into account the relevant statutory provision and legislative framework. Further, it was held that,

Courts must open themselves to the modern trend of technology. This does not mean that the Court can willy nilly accept non-compliance with acts and regulations but must be aware of the requirement that there must be substantial compliance with such acts and regulations.

The Court was satisfied that there had been substantial compliance with the regulations when the affidavits were virtually commissioned.