LexisNexis South Africa (Pty) Ltd v Minister of Justice and Constitutional Development (1018/2024) [2025] ZASCA 181 (1 December 2025)

Case Note

LexisNexis South Africa (Pty) Ltd v The Minister of Justice and Constitutional Development (1018/2024) ZASCA 181 (01 December 2025)

Reportability

This case is significant and thus reportable as it addresses the interpretative challenges surrounding legal regulations in light of modern technological developments. The matter revolves around the interpretation of the term "in the presence of," as stipulated in the Regulations Governing the Administering of an Oath or Affirmation, and whether the administration of oaths can be broadened to include virtual platforms. The ruling not only impacts legal practitioners and the judicial process but also highlights the tension between outdated regulatory frameworks and contemporary technological practices.

Furthermore, the case demonstrates the South African judiciary's approach to interpreting statutes and regulations, revealing the necessity for courts to maintain the balance between legislative intent and modern applications. The outcome could influence how legal declarations and processes evolve in an increasingly digital world.

Cases Cited

1. Firstrand Bank Ltd v Briedenhann [2022] ZAECQBHC 6; 2022 (5) SA 215 (ECGq).
2. Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [2005] ZASCA 50; [2006] 1 All SA 103 (SCA); 2005 (6) SA 205 (SCA).
3. Knuttel N. O. v Bhana [2021] ZAGPJHC 874; 2022 JDR 0190 (GJ).
4. E D Food SRL v Africa’s Best (Pty) Ltd [2024] ZAGPJHC 1619; [2024] JOL 63714 (GJ).
5. J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others [1996] ZACC 23; 1996 (12) BCLR 1599; 1997 (3) SA 514.

Legislation Cited

1. Justices of the Peace and Commissioners of Oaths Act 16 of 1963.
2. Electronic Communications and Transactions Act 25 of 2002.
3. Superior Courts Act 10 of 2013.

Rules of Court Cited

Not applicable.

HEADNOTE

Summary

In this case, LexisNexis South Africa (Pty) Ltd sought declaratory relief regarding the interpretation of "in the presence of" as stipulated in regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation. The appellant contended that this phrase should encompass the use of live electronic communications. The Supreme Court of Appeal dismissed the appeal, ruling that the appellant did not meet the necessary requirements for the grant of declaratory relief.

Key Issues

1. The interpretation of "in the presence of" within the context of administering oaths.
2. The relevance and admissibility of technological solutions in the legal process.
3. The criteria for establishing interest in a declaratory relief application.

Held

The court held that LexisNexis failed to demonstrate an existing, future, or contingent right or obligation necessary to justify the declaratory relief sought. It reaffirmed the interpretation established in the earlier decision of Briedenhann, underlining that the regulations could not be altered absent legislative action.

THE FACTS

LexisNexis South Africa (Pty) Ltd (LNSA) sought a declaratory order regarding the interpretation of regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation, which requires a deponent to sign a declaration in the presence of a commissioner of oaths. LNSA argued that this should be interpreted to include the possibility of administering oaths via live electronic communication. The appeal originated from a dismissal by the Gauteng Division of the High Court, where LNSA's application for leave to appeal was also denied.

The high court's judgment relied heavily on a previous case, Briedenhann, which clarified that "in the presence of" was limited to physical presence. LNSA maintained that recent technological developments and the practicalities necessitated a re-examination of this interpretation, particularly in the post-COVID context.

THE ISSUES

The key legal question presented to the court was whether LNSA had established an interest in an existing, future, or contingent right or obligation to warrant the granting of declaratory relief. The court also considered whether it had the jurisdiction to hear the application given the absence of an ongoing legal dispute and how the statutory regulations should be metamorphosed in light of modern technology.

ANALYSIS

The court conducted a thorough analysis of the criteria for granting declaratory relief, emphasizing a two-stage inquiry: determining whether the applicant has a legitimate interest and then deciding on the merits of granting the relief. It found that LNSA’s claims were insufficient as they lacked a direct legal dispute needing resolution.

In rejecting LNSA’s arguments, the court reiterated that regulatory interpretation does not afford room for judicial discretion beyond the text’s clear meaning. It pointed out that granting the relief could potentially result in unbounded interpretations of the regulations that could jeopardize established legal safeguards against abuse, such as those inherent in face-to-face commission processes.

The court further held that while LNSA's desire for change was legitimate given technological advances, it could not substitute legislative review with judicial interpretation. Introducing substantial changes to the regulations would necessitate a broader consideration of policy implications, best left within the legislative domain.

REMEDY

The remedy granted by the court was the dismissal of LexisNexis's appeal. The decision left the interpretation of regulation 3 intact as established by prior judgments, confirming that oaths needed to be administered in person.

LEGAL PRINCIPLES

The court’s decision highlighted several key legal principles:

1. The limits and nature of declaratory relief applications must be strictly adhered to, requiring established legal interest to engage judicial discretion.
2. It is not the judiciary's role to intervene in areas more appropriately dealt with through legislative reform.
3. The meaning of statutory terms may evolve, but such evolution must follow through authorized channels like legislative amendment, rather than through judicial reinterpretation alone.

In conclusion, the court underlined the need for clarity surrounding legal processes in the era of rapid technological advancement while firmly establishing that existing regulations remain binding unless officially amended.