A recent ruling in Africa's Best Foods v ED Food - delivered by a full bench of the Johannesburg High Court - offers a timely assessment of whether an affidavit commissioned virtually complies with South African law. Crucially, the case highlights the judiciary's discretion to condone virtual commissioning despite technical non-compliance - and the urgent need for statutory reform in the digital age.
The facts
In the court a quo, ED Food, a company based in Italy, instituted legal proceedings against Africa's Best Foods for the payment of monies owed. The parties later reached a settlement agreement and the action was withdrawn. When Africa's Best Foods failed to comply, ED Food sought to recover the outstanding amount. In preparing the claim, the Italian company's appointed attorneys drafted the required affidavits in South Africa, which were signed by the deponents in Italy in the virtual presence of commissioners of oaths during a video call.
The dispute
Africa's Best Foods challenged the validity of ED Food's virtually commissioned affidavits for non-compliance with the law. In response, ED Food countered that the affidavits were properly commissioned, that their authenticity and integrity were preserved, and that the process had been transparently conducted.
Commissioning affidavits: What does the law prescribe?
Under South African law, the commissioning of an affidavit - or sworn statement - is regulated by the Justices of the Peace and Commissioners of Oaths Act ('the Act'). A commissioner of oaths verifies the identity of the person signing the statement, certifies that any documents attached to the affidavit are true copies, and administers an oath to the deponent to confirm that the contents of the affidavit are true.
Notably, regulation 3(1) under the Regulations to the Act provide that a deponent must sign the affidavit in the presence of a commissioner. Historically, this provision has been interpreted to mean the physical presence of a commissioner, which thus excludes the virtual commissioning of affidavits.
What did the court a quo find?
In assessing the evidence, the court a quo found that there was 'substantial compliance' with the statutory requirements for commissioning affidavits. Importantly, the court noted that the judiciary must adapt to modern technology to ensure the administration of justice, which evinces a shift in the law toward an acceptance of technological intervention. Africa's Best Foods appealed the judgment.
Virtual commissioning: A clash between outdated laws and contemporary technology
At the heart of the appeal lies an increasingly germane legal issue: Does South African law currently permit virtual commissioning? In a considered ruling, Maier-Frawley J reaffirmed that the Act, which was promulgated in 1963, does not allow for the virtual commissioning of affidavits. Describing the law as 'outdated', the judge remarked that the Act has not 'adapted to embrace the age of digitalisation' where video conferencing via Zoom or Microsoft Teams is 'the new normal'.
Referencing prevailing jurisprudence, the court confirmed that regulation 3(1) has been consistently interpreted to mean that the deponent must sign in the physical presence of the commissioner. While other legislation, such as the Superior Courts Act and Criminal Procedure Act, permit witnesses to provide evidence via an audio visual link, the virtual commissioning of affidavits remains impermissible in the absence of legislative reform.
Does the court have a discretion to permit the virtual commissioning of an affidavit?
Despite finding that virtual commissioning does not comply with the Act, the court a quo's decision to confirm the validity of ED Food's affidavits was upheld. Emphasising that the Regulations under the Act are directory, substantial compliance suffices. Indeed, the judiciary has a long-recognised discretion to condone non-compliance when the essential purposes of the Regulations are met, namely to verify the deponent's identity, confirm that the oath was taken, and that the deponent understood the nature and effect of doing so.
Importantly, this discretion must be exercised judicially and with due regard to the interests of justice. In this instance, the deponents each took the oath in the presence (albeit virtual) of a commissioner and Africa's Best Foods neither disputed the identity of the deponents or whether the affidavits were signed by the deponents identified by the commissioners. Accordingly, refusing to admit the affidavits would have served only to delay the payment of the outstanding monies. Maier-Frawley J concluded that the lower court had properly exercised its discretion and dismissed the appeal.
Closing analysis
The judgment reflects an increasing judicial willingness to accommodate modern communication technologies, even where legislation lags behind. While virtual commissioning remains technically unlawful, our courts may - and often do - condone it to advance the interests of justice. Ultimately, however, the Act and its accompanying Regulations are relics of a pre-digital era. Without formal amendment, litigants who, for whatever reason, commissioned an affidavit virtually are forced to rely on judicial discretion. Until then, the ruling provides another timely reminder that the law must evolve in line with the realities of the digital age, where 'presence' need not always mean physical proximity.
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