South Africa’s (SA’s) legal system depends significantly on evidence being supplied by affidavits. Deponents are, however, not always based in SA and may be unable to attend to commissioning through the overseas processes available to them, take for example, the client who is on a cruise, working remotely, or in a rural country without consular assistance or in quarantine, self-isolation, or subjected to government-imposed lockdown. New laws can certainly simplify this conundrum. The question nevertheless remains whether they do so sufficiently to allow a commissioner based in SA to commission a document remotely, through a video call?
Domestically, Commissioners of Oaths (commissioners) draw their authority from the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act), either by appointment or ex officio.
In GN903 GG19033/10-7-1988 the minister published a list of ex officio commissioners within SA. Naturally, legal professionals are included. The regulation specifically list the various Acts in terms of which legal practitioners are admitted as being sufficient grounds to be considered as ex officio commissioners. It must be noted that GN903 does not include legal practitioners admitted in terms of the Legal Practice Act 28 of 2014. Indeed, it remains to be seen whether the powers of a commissioner vests in such legal practitioners – a question not considered for purposes of this article.
The Act does acknowledge that from time to time, certain office holders outside of SA may be authorised as a commissioner while overseas (GN R1872 GG7215/12-9-1980). The minister declared that various office holders, in countries outside of SA, shall in that country, have the powers of a commissioner. These offices are prolix and sometimes slightly bizarre. The list includes the head of a South African diplomatic or consular mission, an officer of the South African Defence Force, the leader of the South African National Antarctic Expedition or the weather station on Gough Island, and the Senior Administrative Officer of the Technical Services Division of the South African Embassy in Paris. Thankfully, the list ends with ‘any person who exercises in a state to which independence has been granted by law a legal profession equivalent to that of an attorney, notary or conveyancer in the Republic’. Clearly, a foreign legal professional based overseas may commission a document in that jurisdiction for use in SA, but in practice many non-English speaking legal practitioners are wary of doing this, sometimes being prohibited from doing so without translation (a costly exercise). This alternative is, therefore, only partially workable in practice.
What is clear is that while there are many ex officio commissioners in SA, there are few readily available overseas-based office holders who can exercise this function. Rule 63 provides some relief by allowing a document to be authenticated by certain office holders. Authentication, however, is distinct from commissioning – when applied to a document, authentication is the verification of any signature thereon. The rule goes on to list diplomatic and government office holders who are recognised as being suitable for authenticating documents (such as senior diplomats of the United Kingdom (UK) posted abroad, however, practice reveals that such diplomats often refuse to authenticate or commission documents for anyone other than citizens of the UK). The catch-all provision of the rule is, therefore, useful, subs 4 states: ‘Notwithstanding anything in this rule contained, any court of law or public office may accept as sufficiently authenticated any document which is shown to the satisfaction of such court or the officer in charge of such public office, to have been actually signed by the person purporting to have signed such document.’
How exactly an oath is to be administered is covered in GN R1258 GG3619/21-7-1972, which states the commissioning procedure. This procedure, which should be trite to all commissioners but is often not adhered to (an example is the loose practice often followed by South African Police Service), is to ask the deponent –
At this point the commissioner asks the deponent to recite the words pertaining to either the oath/affirmation, and then the regulation requires that ‘the deponent shall sign the declaration in the presence of the Commissioner of Oaths’ (our italics). It is in this particular section, with the emphasis on ‘presence’, that is important in the following discussion. Following this process, the commissioner applies the certificate, signature, name and business address, as well as the designation and the area for which the commissioner holds the office, if appointed ex officio. As is practice, the deponent’s identity should be evidenced to the commissioner by providing an acceptable identity document.
In Gulyas v Minister of Law and Order [1986] 4 All SA 357 (C), Baker J equated ‘in the presence of’ to be analogous to ‘within eyeshot’. We submit that the reason for a commissioner and the deponent to be within eyeshot of one another is for the commissioner to ascertain the identity of the deponent by examining the identity document provided and comparing it to the deponent, and to ensure that the correct papers are properly deposed to.
The Electronic Communications and Transactions Act 25 of 2002 (ECTA) makes provision for data messages (which includes, inter alia, any data generated, sent, received or stored) to be used in legal proceedings and in many sections upholds the evidentiary value of data messages. In s 11, ‘[i]nformation is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message’ and in
s 12 ‘[a] requirement in law that a document or information must be in writing is met if the document or information is –
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference’.
The admissibility and evidential weight of a data message is encapsulated in s 15, which holds that in legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message. A court must have regard to the reliability of the manner in which the data was generated, stored or communicated, and the manner of the integrity of the maintenance of the data message, and the manner in which the originator was identified. Courts are also required to take any other relevant factor into account.
The certifying of electronic documents as originals is further clarified in s 14. This provision states that the originality requirement is met if the integrity of the original, from the time of generation to its final form as a data message, if the data has remained complete and unaltered, except for –
This is addressed further in s 18(2), which allows a certified copy to be made of an electronic document, which is subsequently printed out.
What emerges is that courts have a broad discretion to examine data messages, which are used for evidence, and that the mere electronic nature of that evidence should not be grounds to diminish the probative value of the evidence.
The notarisation, acknowledgement and certification of documents by means of an advanced electronic signature is explicitly addressed in s 18 of ECTA. While progressive, the concept of an advanced electronic signature falls outside the scope of this article.
Is there a reasonably practical, simple solution available, given the raft of legislation and regulations in play, or must a foreign-based client go to significant costs and efforts to attain what should be a simple and freely available service domestically? It is clear that the only difference between commissioning an affidavit in person, and commissioning an affidavit remotely, is that in the latter scenario, the commissioner and the deponent are not strictly ‘in the [physical] presence’ of one another, as required by the regulations in GN R1258 (op cit). However, the term ‘in the presence of’ has been interpreted not to be the same as ‘physically present with one another’, but rather as being presented in such a manner so as to allow the parties to see one another. For example, s 158 of the Criminal Procedure Act 51 of 1977 (CPA) requires that witness evidence be given ‘in the presence of the accused’. Further, the CPA states that evidence can also be adduced by way of closed-circuit TV, arguably expanding on the ‘in the presence of’ provision. In the commissioning setting, an interpretation of the commissioning legislation and regulations would have to give effect to the dominant purpose of the ‘in the presence of’ provision, namely that the commissioner has eyeshot of the deponent (which is achievable by a video link). Naturally, there are risks associated with this – what if the identity document is forged, and that such forgery (which might be readily ascertainable in person) is undetectable over video? This is surely a risk to the legal practitioner. That being so, commissioners are rarely, if ever, trained to spot forged documents and could very easily be duped by a reasonable imitation, even if examining the identity document and viewing the deponent in person.
There is a useful catch-all provision in ECTA at s 15(4) which states that ‘[a] data message made by a person in the ordinary course of business … certified to be correct by an officer in the service of such person, is on its mere production in any … [legal proceedings], admissible in evidence against any person and rebuttable proof of the facts contained’. If the identity of the deponent is doubted by the court or an opponent, it is clearly open to rebut the presumption in this section.
In Uramin (Incorporated in British Columbia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236 (GJ), Satchwell J allowed the use of video link to lead evidence in a civil matter from witnesses who were abroad. It is, therefore, suggested that substantial compliance with the Uniform Rules of Court can be achieved, as well as complying with the relevant legislation and regulations, for a legal practitioner to undertake the following steps to commission a client’s affidavit by remote means. These steps were taken in the 2016 case of Elchin Mammadov and Vugar Dadashov v Jan Stefanus Stander and Three Others (GP) (unreported case no 100608/15), and condonation was granted by Mavundla J.
It would be prudent for the commissioner to confirm to the court by means of an affidavit that data integrity was maintained, setting out these steps and any others taken, and to provide reasons for the court to grant condonation, should such be required.
If the legislated options are available to a deponent to commission a document, then these should be used. Alternatively, recognised foreign-office officers can, in theory, be called on, but in reality these officers tend to be confined by one of many possible constraints. Given the global environment, which many legal practitioners find their clients, a pragmatic, technology-driven, and expedient solution, such as has been described, should be employed.
Peter Otzen BSocSci LLB (UCT) is a legal practitioner at Guthrie Colananni Attorneys and Aran Brouwer BCom LLB (Stell) is a Pupil at the Cape Bar in Cape Town.
This article was first published in De Rebus in 2020 (June) DR 22.
