E-Commissioned Affidavits Are Valid as per Ruling by High Court

In a recent court case, the High Court dealt with whether affidavits commissioned via audiovisual link – in this case Zoom. The case involved an applicant residing outside of South Africa, who commissioned his affidavit using Zoom, to a commissioner of oaths present in South Africa. The commissioner confirmed that all regulatory requirements were followed despite the remote format.

Traditionally, affidavits are governed by the Justices of the Peace and Commissioners of Oaths Act, which mandates that the deponent and commissioner be physically present. The ruling in this case confirmed that the evolution of legal processes must adapt to modern technological capabilities, such as video conferencing. The court emphasised that technology's role in legal proceedings must comply with the "substantial compliance" standard—meaning that as long as the oath-taking procedure aligns with the essence of the law, it is considered valid​.

Furthermore, Section 37C(5) of the Superior Courts Act 10 of 2013 recognises that a witness giving evidence via audiovisual means is equivalent to testifying in person. This precedent directly influenced the court's decision, allowing the remote affidavit to be deemed valid​.

This case is significant for accountants, particularly when dealing with cross-border legal matters. It points towards reduced logistical burdens in commissioning affidavits for clients outside of South Africa, reflecting an increased flexibility and accessibility of the judicial process.

For a step by step approach on e-commissioning read our previous article here: https://www.accountingweekly.com/practice-management/virtual-commissioning-of-documents-what-accountants-need-to-know?rq=commission