In Firstrand Bank v Briedenhann, the court held that (as a rule) the law does not allow virtual commissioning – a commissioner of oaths should only commission an affidavit by a deponent if the deponent, the document and their signature are in the physical presence of the commissioner. The court held that, as a general rule, virtual depositions or commissioning in South Africa are impossible. The South African Parliament needs to change the law to allow for virtual commissioning over online meeting tools or in the metaverse. However, a court may, in its discretion, allow it in the interests of justice. It is also worth noting that signing a digital affidavit with an advanced electronic signature is possible.
Important notes
- This case does not deal with certifying documents virtually but rather commissioning documents online or virtually.
- This case has now been overruled by the recent judgment ED Food v Africa’s Best Foods, which held in favour of online commissioning.
Many people ask these types of questions: Can I sign a sworn affidavit before a commissioner of oaths using an online meeting tool, like Teams, Google Meet or Zoom? Is virtual commissioning or online commissioning possible in South Africa? Do I have to be in the physical presence of a commissioner of oaths to sign an affidavit? As a commissioner, must I insist that the deponent must be in my physical presence?
According to Firstrand Bank v Briedenhann, South African law does not allow virtual commissioning.
Firstrand brought a default judgment application against Mr Briedenhann for money owed to it. Firstrand submitted an affidavit that it had electronically signed and which was virtually commissioned. The court did not condone Firstrand’s elective non-compliance with the Regulations Governing Administration of Oaths and Affirmations (Regulations). However, it held that the affidavits substantially complied with the provisions of the Regulations.
Who should care about this judgment and why?
- Commissioners of oaths because it provides guidance on the virtual commissioning of affidavits and declarations.
- All organisations who are interested in virtual depositions or commissioning because it clearly explores the issues.
- Deponents (one who makes an affidavit under oath) because it provides guidance on whether you can electronically sign and virtually commission affidavits.
What could you do about it?
- 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 the Firstrand Bank v Briedenhann judgment
COVID-19 shrunk the world significantly and it has revolutionalised how people work and communicate every day. For example, we can now meet virtually and electronically sign documents. The technologies that enable this have increased and will continue to increase. In response to the pandemic, courts have allowed certain practices they previously would not have allowed. An example of this is the Knuttel N.O and Others v Bhana case where the deponent to the founding affidavit was infected with COVID-19. Because of this, she could not meet the commissioner of oaths in person. Instead, the commissioner confirmed her identity and then administered the oath via video call. The commissioner then physically signed the declaration. The court admitted the affidavit after it looked at the facts of the case.
Another example of how the legal profession has had to adapt would be people getting admitted as attorneys or advocates via Zoom.
The court’s stance on virtual commissioning or online commissioning in South Africa
The legislature could not have thought of virtual commissioning when it first created the Regulations decades ago. This largely influences the court’s decision in this case. It did not want to deviate from the intention of the legislature regarding Regulation 3(1). The court looked at the ordinary dictionary meaning of the phrase, “in the presence of” and determined that the phrase suggests one would have to be in the physical company of the commissioner. It felt that it was outside its ambit to recognise and legitimise virtual depositions. It is instead up to the legislature or the Minister of Justice to decide on this.
This judgment demonstrates just how far behind South Africa is on the topic of virtual commissioning. The legislature has not amended the Justices of The Peace and Commissioners of Oaths Act since 1999. This is despite the creation of legislation like the Electronic Communications and Transactions Act which recognises advanced electronic signatures and the admissibility of electronic communications as evidence.
Hopefully, there will be more developments in this area which will see virtual commissioning becoming a norm. Canada (Ontario), for example, now has legislation that permits the practice of remote commissioning. It offers guidelines on the best practices for virtual commissioning.
Until then, courts still expect strict compliance with Regulation 3(1) unless there are compelling reasons for deviation.
Digest of Firstrand Bank v Briedenhann
Firstrand Bank created a process for the electronic signing and commissioning of affidavits. This was because of its adoption of digital record-keeping systems and it also wanted to follow local and global digitalisation trends. It relied on ECTA for this and it set up a LexisSign digital platform for the purpose of signing and commissioning affidavits.
The court observed that ECTA allows people to use digital affidavits and to sign these electronically. However, it has to be subject to the requirements of Regulation 3(1). It looked at whether one may use a video or virtual link for purposes of Regulation 3(1). The court was of the view that it could not, but it still looked at case law for guidance.
Case law
The court considered three leading cases, namely S v Munn, Mtembu v R, and R v Sopete.
In all three matters, the courts respectively held that the regulations are prescriptive and in special circumstances, especially where failure to comply relates to form (and not substance) the court may allow for deviation. What this means is that the courts have a discretionary role in determining whether there was substantial compliance with the Regulations where the administering of an oath has not complied with the Regulations. Substantial compliance is a factual issue and it must be determined on a case-by-case basis.
Compliance is still required
The court was quite stern in conveying the message that one must make every effort to comply with the Regulations. A person cannot just choose to deviate from what the Regulations require. The court found that Regulation 3(1) clearly requires affidavits to be signed in front of (in the physical presence of) the commissioner. Because of this, the Regulation must be followed unless there is an impediment to compliance.
Using its discretionary role, the court held that:
- The purposes of Regulation 3(1) have been satisfied.
- To refuse to admit the affidavits would, of course, highlight the importance of adhering to the principle of the rule of law, but it would not be in the interests of justice to require Firstrand Bank to start its application afresh.
- There is no doubt that the deponents did take the prescribed oath and that they affirmed doing so.
Order
The court ordered:
- The affidavits to be admitted on the basis that they substantially comply with the provisions of the Regulations.
- The defendant to pay to the plaintiff the sum of R928 138.42 (plus interest and costs).
Details of Firstrand Bank v Briedenhann
- Universal citation: [2022] ZAECQBHC 6
- Case number: 3690/2021
- Full name: Firstrand Bank Limited v Briedenhann
