In ED Food v Africa’s Best Foods, the court examined the legality of commissioning affidavits electronically, such as through video conference calls. It found that online commissioning is valid and stressed substantial compliance with regulations.
The short answer is yes, online commissioning is a valid way of administering an oath or affirmation.
This judgment overrides the decision made in Firstrand Bank v Briedenhann, where the court held that (as a rule) the law does not allow online commissioning. This case does not deal with certifying documents virtually but rather commissioning documents online or virtually.
Who should care about this judgment and why?
- Commissioners of oaths because it provides guidance on online commissioning of affidavits and declarations.
- All organisations who are interested in online commissioning because it clearly explores the issues.
- Deponents (one who makes an affidavit under oath) because it guides whether you can electronically sign and commission affidavits online.
What could you do about it?
- Find out more about when you can commission documents online.
- Read the full judgment by downloading it.
- Find out more by reading the Michalsons insights on how to use electronic signatures securely.
- Access other relevant electronic signature content by visiting the Michalsons Electronic Signature Law page.
Our insights on online commissioning
This judgment shows why adapting our legal procedures to modern technological advancements is important. By accepting commissioning documents online or virtually, the court acknowledges the need to accommodate globalised practices, especially in contexts where physical presence is impractical or impossible. This decision promotes efficiency, accessibility, and cost-effectiveness in legal proceedings, aligning with the changing needs of society and the justice system. This approach promotes resolving disputes quickly and ensures fair access to justice, especially in cross-border or time-sensitive matters. The judgment reflects a balanced approach that upholds legal standards while embracing technological progress for enhanced judicial processes.
ED Food emphasised the urgency of the situation and the lack of reasonable alternatives created a circumstance where online commissioning was absolutely necessary. The Commissioner was duly appointed, adhered to protocols and administered oaths online via video call.
Digest of ED Food v Africa’s Best Foods
Africa’s Best Foods challenged ED Food’s affidavits for being irregularly commissioned because the deponents were in Italy while the Commissioner of Oaths was in South Africa. EDF relied on substantial compliance and the necessity due to urgency and lack of reasonable means for commissioning.
The court’s decision
The court found that the Commissioner substantially complied with the regulations. It cited past cases, highlighting how courts should continue following the rules, but encourages them to adjust to new technologies.
An interesting comment was that the mere technicality of the deponent not being in the presence of the Commissioner of Oaths is an unnecessary technicality, creating a hurdle to the speedy and effectual administration of justice.
Order
The court:
- awarded costs on an attorney and client scale in favour of ED Food; and
- dismissed the point in limine (the argument against online commissioning) raised by Africa’s Best Foods.
Details of ED Food v Africa’s Best Foods
Universal citation: [2024] ZAGPJHC 1619
Case number: 2022/1245
Full name: Ed Food SRL v Africa’s Best (Pty) Ltd
