Article written by Nicholas De Decker (Candidate Attorney – Lawtons Incorporated)*
Limiting physical contact between people has long been held as the most effective way of stopping the spread of COVID-19. With the advent of new technology to help facilitate virtual interactions, most industries have been able to adapt quite easily.
But not all day-to-day transactions are the same. In certain instances, physical engagement is a strict requirement. Commissioning of documents is a prime example, as it requires that all deponents are to appear in person before the relevant Commissioner of Oaths. However, recent developments in case law reveal the potential for a shift in the legal position.
The fairly recent case of Knuttal v Bhana dealt with an application by the trustees of a property seeking to evict a tenant. During the proceedings, one of the ancillary issues that the court had to consider was whether there had been substantial compliance with the requirements for the commissioning of the oath for the founding affidavit.
The respondents contested that the founding affidavit was invalid as it was not signed by the deponent in the physical presence of a Commissioner of Oaths. The basis for this claim was that the applicant was infected with COVID-19 at the time and could not meet the Commissioner of Oaths in person without exposing them to the risk of infection. In light of this, the signing of the founding affidavit was done through an exchange of emails, followed by a WhatsApp video call between the deponent, their attorney and the Commissioner of Oaths. During this video call, the deponent confirmed their identity, by showing their identity document to the Commissioner of Oaths, and then proceeded with all the necessary formalities required to commission a document with the exception that this was done virtually.
Regulation 3(1) of the Regulations Governing the Administration of an Oath or Affirmation of 1972 stipulates that:
“The deponent shall sign the declaration in the presence of the Commissioner of Oaths.”
However, the court in this case referred to the judgment of S v Munn whereby the full bench noted that non-compliance with these regulations does not necessarily render an affidavit invalid, going on to say that the purpose of obtaining the deponents signature is first and foremost to confirm that deposition was in fact sworn to by the deponent themselves.
Taking this into consideration, the court, after examining the extraordinary steps taken to commission the document, as well as the surrounding circumstances related to COVID-19, ruled that there had been sufficient compliance with the regulations for commissioning a document. As such, the founding affidavit was valid, and the case could proceed.
What does this mean for virtual commissioning in the future? Knuttal v Bhana could be a crucial stepping stone towards a future where documents can be commissioned from anywhere in the world. However, it is important to note that the court in this instance made it clear that this decision does not constitute a development of the current law but was rather a relaxing of the current rules to accommodate the extraordinary circumstances of this case.
This means that if a party decides to make a deposition to a Commissioner of Oaths virtually, while keeping up with all the other requirements for commissioning a document, they still run the risk of having the authenticity of the certification called into question. This case only illustrates the court’s power to condone a virtual commission in certain circumstances.
The current legal position is still that all relevant deponents have to appear physically, before a Commissioner of Oaths can authenticate their documents.
*Supervised by: Penny Chenery – Director & Head of Real Estate