Revisiting the validity of virtually commissioned affidavits

Image source: DC Studio from Freepik

The judgment is a timely reminder for practitioners: technology changes fast, but the statute book has not, and until Parliament acts, litigants must take care to commission and authenticate affidavits in a way that will survive judicial scrutiny.

Factual background

ED Food (an Italian company) sued Africa’s Best Foods (Africa’s Best) in the Gauteng High Court. The parties settled but a portion of the settlement remained unpaid. ED Food launched motion proceedings to recover the outstanding €28,000.

Many of ED Food’s affidavits were deposed to in Italy by deponents appearing over Zoom; the commissioners of oaths who “administered” the oaths were sitting in South Africa and certified they had satisfied themselves as to identity and that the deponents understood the oath.

Africa’s Best objected in limine: the affidavits had been virtually commissioned and therefore did not comply with Regulation 3(1) to the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963, which requires the deponent to sign “in the presence” of the commissioner.

The court a quo admitted the affidavits on the basis of substantial compliance and decided the merits in favour of ED Food. The appeal focused on whether the lower court properly exercised its discretion to accept those affidavits.

The legal issues the court addressed

The appeal concentrated on three questions:

1. Was virtual commissioning permitted by Regulation 3(1) of the Regulations governing administration of oaths (ie. does “in the presence of” require physical proximity)?
2. Could a South African commissioner lawfully administer an oath to a deponent who was physically outside South Africa?
3. Did the court a quo properly exercise its discretion to admit the affidavits in the interests of justice despite any technical non-compliance?

The court’s reasoning

Regulation 3(1) and virtual commissioning

The court accepted existing authorities (including Briedenhann and later decisions) that, read literally and purposively; Regulation 3(1) presumes physical proximity: the deponent must append a signature in the physical presence of the commissioner of oaths.

The statutory scheme (sections 5–8 of the Act and the 1972 Regulations) reflects territorial and physical assumptions born of a pre-digital era. The court therefore concluded that virtual commissioning is not presently authorised by the Regulations and that meaningful legislative amendment would be required to legitimise it formally.

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Foreign deponents and section 8 authentication

Section 8 of the Act deals with affidavits sworn before certain foreign office-holders (eg. a foreign notary) who are designated by Gazette notice; such affidavits, once properly authenticated, are admissible in South African courts as if sworn in the Republic.

The court emphasised that the statutory path for overseas deponents remains section 8 (or the court-ordered commission procedure under the Uniform Rules), and that using a South African commissioner to “virtually” swear a deponent abroad does not neatly sit within section 8’s authentication regime. In short: there is an established, statutory way to take sworn affidavits outside South Africa which must be followed rather than trying to replicate the effect via video link.

Court discretion, Rule 63 and the interests of justice

Notwithstanding the textual strictures, courts retain residual powers (for example Rule 63(4) and section 37C of the Superior Courts Act) to accept documents or evidence where satisfied as to authenticity or where the interests of justice demand it.

The lower court had found substantial compliance (commissioners explained steps taken to verify identity and to observe the deponents sign) and received the evidence; the appeal therefore turned on whether that exercise of discretion was correct.

The judgment emphasises a pragmatic thread: courts may be willing to receive remotely commissioned affidavits if the party relying on them can show that (a) the document is properly authenticated or (b) the integrity of the process and the evidence are demonstrably preserved; but absent clear statutory validation, doing so remains an exceptional, discretionary step.

Practical implications for practitioners and clients

For practitioners commissioning affidavits involving deponents abroad

Use the statutory route (section 8) where possible
Ask the deponent to swear/affirm before a locally empowered foreign official (notary/attorney) and obtain the authentication required by s 8(2). That method remains the safest and most widely accepted.

If you must use video-link, over-document the commissioning process
Have the commissioner file a confirmatory affidavit setting out (with timestamps/screenshots where possible) the identity checks, the precise sequence (signature, oath, signing), and how the commissioner ensured the deponent’s free will and comprehension. Annex contemporaneous screenshots or call logs. The courts will look for a robust factual narrative showing integrity.

Consider a court-appointed commission under Rule 38/Rule 65 or seek an order under section 37C
If evidence from overseas witnesses is likely to be important, obtain a formal court direction for audiovisual testimony or a deposition before a commissioner appointed for the purpose; this removes arguable objections and provides a clear procedural foundation.

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For litigators opposing virtually commissioned affidavits

Raise the point early and precisely
Object in limine if prosecution of the case depends materially on such affidavits. Identify whether the deponent could have used s8 authentication or a court-appointed commissioner and whether counsel sought to regularise the defect.

Assess prejudice and the interests of justice
If the opposing party can cure the defect easily (for example, by a confirmatory affidavit from the commissioner or by filing authenticated originals), courts are likely to weigh interests of justice in favour of preservation of evidence, not automatic exclusion. Tailor your relief (referral to oral evidence, further affidavits, or costs) to the balance of hardship.

For in-house legal teams and clients

Build commissioning and authentication into your international evidence playbook
Have a standard checklist for overseas deponents: nominate authorised foreign officers, confirm local authentication steps, preserve call logs/screenshots when using audio-visual means, and obtain confirmatory statements from any South African commissioner purported to be involved.

Budget for formal commissions for key witnesses
The modest time and cost of a properly appointed commission can avoid the time, expense and uncertainty of litigation over admissibility at a later stage.

Broader message — law reform is overdue

The case reinforces a theme many courts and commentators have noted: South African commissioning rules are anachronistic in an era of globalised litigation and reliable audio-visual technology. Several judgments have flagged the desirability of legislative reform to permit properly regulated virtual commissioning.

Until Parliament acts, however, practitioners must either comply with existing overseas authentication routes or present airtight factual proof that any departure was both necessary and harmless.