During COVID many affidavits were commissioned electronically due to the travel and other restrictions that were imposed.
In recent case law, South African courts have allowed for virtual commissioning under certain circumstances. The courts have allowed for virtual commissioning to be done through video technology where an affidavit is sent to the deponent by e-mail and then printed by them. The deponent then proves his or her identity by showing a suitable document to the commissioner over video technology.
In the recent judgement of Tinashe v University of Limpopo (9938/2022) [2023] the applicant, Madaure Jacqueline Tinashe, was a PhD student at the University of Limpopo (Turfloop Campus). She sought to review and set aside the failure of the University to release her thesis results. As an alternative to the release of the results, she prayed for an order directing the university to ensure that her thesis was marked and the results released within thirty days of the order being granted.
The application was opposed by the University on the basis that Tinashe had not fully traversed the complete route qualifying her to receive PhD results. The University claimed that there were aspects of scholarly dishonesty attendant to her thesis which still needed to be determined.
Prior to dealing with the merits of the application, the University raised two points in limine. The first point was that Tinashe’s founding and replying affidavits were not properly commissioned and were thus non-compliant with regulation 3(1) of the Regulations Governing the Administering of Oath or Affirmation. The second point was that Tinashe’s application had been brought prematurely as she had not exhausted internal remedies as required by the Promotion of Access to Justice Act (PAJA) 3 of 2000.
In response to the first point in limine, Tinashe contended that her founding and replying affidavits were sound in law as they were signed in accordance with an exception to the general rule that affidavits must be commissioned in the presence of the deponent. It is common cause that both affidavits were signed by Tinashe in Zimbabwe and commissioned in South Africa.
Virtual commissioning of documents is only done as an exception because it is not explicitly provided for in South African law. The Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act) does not specifically allow for virtual commissioning and there are no regulations governing how it should be done. As such, virtual commissioning is only allowed in exceptional circumstances where it is necessary due to factors such as distance, illness, or other practical considerations.
The Court found that there was no founding affidavit before the Court and upheld the point in limine that the founding affidavit did not comply with the Regulations Governing the Administering of Oaths and Affirmations.
