CIBA Business Accountants in Practice, BAP(SA)s are Commissioners of Oath due to the designation they hold as published in Government Gazette R421 dated 30 May 2014. Traditionally, and in line with current regulations, commissioning documents required physical presence before a commissioner of oaths. However, advancements in technology and recent legal developments have introduced virtual commissioning as a legitimate alternative. This post explores the legality and process of online commissioning, based on recent South African legal judgments.

Purpose of Commissioning Documents

Commissioning documents, such as affidavits, involves verifying the signer's identity, ensuring they understand the document's contents, and confirming the document was signed in the commissioner's presence. This process helps prevent fraud and ensures the document’s validity in legal proceedings.

The Legality of Virtual Commissioning

The legality of virtual commissioning was confirmed by recent judgments, such as the case of ED Foods SRL vs AFRICA’S BEST (PTY) LIMITED. The High Court found that virtual commissioning aligns with the requirements of the Justices of Peace and Commissioners of Oaths Act, 16 of 1963, provided there is substantial compliance with the law.

The High Court emphasised the importance of substantial compliance with legal provisions, meaning that the essence of the law must be met even if the process is adapted to modern technology. Virtual commissioning promotes accessibility for individuals who cannot appear in person due to travel constraints or other commitments.

Process of Virtual Commissioning

Virtual commissioning uses technology to make the process easier and more accessible. Instead of meeting in person, the commissioner and the person signing the document connect through a video call. Identity verification is done by showing ID documents on camera, rather than physically. Both parties use electronic signatures and seals on the document, making it convenient for those who can't be there in person due to travel or other commitments. Despite these differences, virtual commissioning still follows all legal requirements and ensures the document is valid. The steps to follow are:

1. Prepare the Document: Ensure the client has finalised their document before the commissioning process.

2. Meet the Client Online: Schedule a video call with the client using a reliable platform.

3. Verify Identity: Confirm the client’s identity by checking their identification documents via video call.

4. Pre-Oath Questions: Ask the client if they understand the contents, have any objection to the oath, and consider the oath binding on their conscience.

5. Administer the Oath or Affirmation: If agreed, have the client repeat the required words:

• Oath: “I swear that the contents of this declaration are true, so help me God.”

• Affirmation: “I truly affirm that the contents of this declaration are true.”

6. Sign and Seal: Both you and the client will initial each page and fully sign the last page. The commissioner adds their electronic seal.

7. No Fees: Ensure no fee is charged for administering the oath or affirmation.

8. Impartiality: Confirm the commissioner has no personal interest in the matter.

Virtual commissioning of documents is a practical and legal alternative to traditional methods. It enhances accessibility and aligns with modern technological trends. However, it is essential to ensure substantial compliance with legal requirements and seek professional advice to navigate this evolving landscape effectively.

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