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[2022] ZAECQBHC 6
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Firstrand Bank Limited v Briedenhann (3690/2021) [2022] ZAECQBHC 6; 2022 (5) SA 215 (ECGq) (5 May 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
Reportable
In
the matter
between:
Case
No: 3690/2021
FIRSTRAND BANK
LIMITED

Plaintiff
And
JACQUES LOUIS
BRIEDENHANN

Defendant
Summary:
Default judgment on basis of loan
agreement and mortgage bond. Due notice given in terms of s 129(1)
of
National Credit Act
– Summons served – no appearance to defend entered.
Affidavits
filed in support of default judgment application executed in digital
form and signed with electronic signatures pursuant
to provisions of
Electronic Communications and
Transactions Act
(
ECTA
).
Oath
Administered by Commissioner of Oaths by way of video conference with
deponent.
Whether
Regulation 3(1) of regulations Governing Administration of Oaths and
Affirmations to be interpreted to include ‘virtual
presence’.
Held:
That Regulation 3(1) envisages
signature of declaration in physical presence or proximity of
commissioner.
Held
:
That to interpret Regulations 3(1) to include such ‘virtual
depositions’ would involve court straying into legislature’s

terrain. Important policy issues arise in relation to innovations to
embrace virtual technologies that are properly within sphere
of
legislature and executive.
Whether the affidavits
substantially comply with directory provisions of Regulation 3(1).
Held
:
That they do. Circumstances giving rise to non-compliance relevant.
Courts will not condone non-compliance where it results from
election
not to follow requirements.
Court
accepting plaintiff’s bona fides. Court’s discretion
involves considerations of interest of justice.
Held:
That affidavits substantially comply
with Regulation 3(1). Judgment entered in favour of plaintiff.
JUDGMENT
GOOSEN
J:
[1]
The substantive question of whether to grant judgment by default is
not in issue and not the subject of this judgment. Instead,
it
concerns a question which our recent experience of a global pandemic
has thrust to the fore: namely the acceptance of digital
or remote
commissioning of affidavits for use in court proceedings.
[2]
Before turning to that question I must deal briefly with the
underlying merits of the application for default judgment. The

plaintiff instituted action against the defendant for payment of the
sum of R928 138.42 together with interest on that amount and
costs.
The cause of action is founded upon the conclusion of a written loan
agreement on 1 June 2016. The loan was subject to the
registration of
a mortgage bond over an immovable property being Erf 1009, Charlo, in
Nelson Mandela Bay. In terms of the loan
agreement and mortgage bond
the defendant bound the property as continuing security for the
payment of all amounts owing to the
plaintiff. The plaintiff complied
with its obligations. The defendant, however, in breach of the
agreement failed to pay the instalments
due to the plaintiff and
accordingly fell into arrears.
[3]
The
plaintiff gave due and proper notice in terms of s 129(1) of the
National
Credit Act
(hereinafter ‘
NCA
’)
[1]
.
The defendant failed to respond to the notice and failed to avail
himself of the remedies available to him in accordance with
the
provisions of the
NCA
.
[4]
The summons, which was issued on 2 December 2021, was served upon the
defendant at his chosen
domicilium citandi et executandi
address on 14 December 2021. No notice of intention to defend the
action was filed and on 4 February 2022, the plaintiff filed
an
application for judgment in terms of Rule 31(5) with the Registrar of
the Court. The request for judgment included, as did the
prayers in
the particulars of claim, an order authorizing execution against the
immovable property.
[5]
The Registrar referred the matter to open court. The matter came
before me on Tuesday, 5 April 2022. It should be mentioned
that the
plaintiff sought only an order in relation to the judgment debt. This
accords with the practice in this Division, namely
that the entry of
judgment upon the debt due to the plaintiff is antecedent to
proceedings relating to execution against the immovable
property as
envisaged by Rule 46A of the Rules of Court. It is, in my view,
unnecessary to belabour this aspect, or to deal with
the practice in
other Divisions insofar as such practice differs from that followed
in this Court.
[6]
At the
hearing of the matter I drew to counsel’s attention that my
only concern related to the fact that the affidavit filed
in
accordance with Rule 14A of the Eastern Cape Rules had been signed by
the deponent utilizing an electronic signature and had
been
commissioned by way of virtual conference. The papers included an
affidavit, also deposed to virtually, which set out averments
which
sought to establish compliance with the provisions of the
Electronic
Communication and Transaction Act
[2]
(hereinafter ‘
ECTA’
).
[7]
In light of
the provisions of the Regulations Governing the Administration of an
Oath or Affirmation
[3]
(the
Regulations) promulgated in terms of the
Justices
of the Peace and Commissioners of Oaths Act
[4]
,
I requested counsel to submit argument in relation to the acceptance
or recognition by a court of a virtual mode of administration
of
oath. The matter was postponed, initially to 8 April and, then, at
the request of the plaintiff, to 19 April 2022. Following
the
postponement, the plaintiff filed a further affidavit dealing with
the processes employed to assure the authenticity and reliability
of
virtually commissioned affidavits. Counsel also filed helpful heads
of argument for which I am grateful.
[8]
As indicated in the introduction the use of digital technologies and
‘remote’ or ‘virtual’ technologies
have, in
recent years, been thrust to the fore. The outbreak of a global
pandemic, which in its early days wrought widespread devastation
in
health systems around the globe and caused large scale loss of life,
resulted in many countries imposing significant restrictions
on
ordinary social and economic activity. Within a matter of weeks in
early 2020 ‘lockdowns’ were imposed. Extensive

restrictions were placed on the physical movement of people and on
the conduct of usual or normal commercial activity. In reaction
to
these restrictive measures, widespread adoption of ‘remote’
technologies, in particular video conferencing via internet
based
digital platforms, occurred.
[9]
Within the legal sector and in court and justice systems, globally,
new rules and directives were issued to allow courts to
continue to
provide access to justice notwithstanding the ‘lockdown’
of social and commercial interaction. South Africa
responded in
similar fashion.
[10]
As the course of the pandemic has worn on, initial responses were
adapted and modified to take account of the progress made
in medical
interventions to protect against the virus and its many variants.
Restrictions on the movement of people and social
and commercial
gatherings have been eased. Even so, the adoption of innovative
technological means by which to conduct social,
commercial and
economic activities has not been ‘undone’ by the easing
of economic lockdowns. There are strong indications
that some of
these technologies will continue to be deployed even as lockdown
restrictions are finally removed.
[11]
It is in this context that the issue in this matter arises. In
addition to the affidavit filed in terms of Rule 14A, the deponent,

Reddi, has filed a further affidavit. This affidavit concerns the
production in evidence of copies of the Mortgage Bond and Loan

Agreement as data messages in accordance with s 15(4) of
ECTA
.
This affidavit also sets out the circumstances in which the
affidavits were signed by electronic signature and commissioned in

the virtual presence of a commissioner of oaths via a video
conference using the Microsoft Teams platform.
[12]
Reddi states that the plaintiff has, in line with its adoption of
digital record keeping systems and the adaptation of its
business
practices to accord with local and global digitalization trends, also
sought to limit the spread of the Covid 19 virus.
It has therefore
embarked upon a process of having affidavits signed and commissioned
electronically. In doing so, it seeks to
rely upon the provisions of
ECTA
relating to electronic signatures.
[13]
The plaintiff states that it has, in co-operation with LexisNexis (a
global legal publishing company), set up a LexisSign digital
platform
for the purpose of commissioning affidavits. This system is explained
in some detail by Mr Gomes, the senior manager of
legal recoveries of
the plaintiff, in a supplementary affidavit. Mr Gomes says that the
LexisSign platform is a ‘cloud’
based software system
used by the plaintiff’s legal recoveries department. It
operates as follows:
(a)
The plaintiff’s designated employee (the deponent to an
affidavit) logs onto the system
using a secure username and password;
(b)
The deponent uploads their affidavit in digital form to the LexisSign
platform;
(c)
The deponent arranges a virtual meeting, using Microsoft Teams, with
an appropriate commissioner;
(d)
During the virtual meeting the commissioner logs onto the LexisSign
platform;
(e)
The deponent grants the commissioner access to the digital affidavit;
(f)
The deponent then attests to the affidavit by taking the prescribed
oath whilst in
the virtual presence of the commissioner on Microsoft
Teams;
(g)
The deponent then appends their electronic signature to the
affidavit;
(h)
The commissioner in turn attaches their advanced electronic signature
as required by s 18(1) of
ECTA;
(i)
Once both have attached their signatures the digital file is
encrypted on the LexisSign
platform and stored;
(j)
The plaintiff is then able to retrieve the encrypted digital
affidavit as a data message.
[14]
Mr Gomes points out that, on the present configuration of the
platform, it is not possible to initial each page of the affidavit,

as practice requires in the Eastern Cape. However, the encryption of
the digital affidavit renders it unalterable and secure. This

provides assurance that the multiple pages of the affidavit are not
susceptible to alteration once the affidavit has been signed.
The
Regulations
[15]
Regulations 1 and 2 of the Regulations Governing the Administration
of an Oath set out the nature of the oath or affirmation
to be taken
and the form in which it is administered. Regulations 3 and 4
provide, respectively, as follows:
“
3(1) The deponent
shall sign the declaration
in the presence of the commissioner
of oaths.
(2)
If the deponent cannot write he shall
in the presence of the
commissioner
of oaths affix his mark at the foot of the
declaration: Provided that if the commissioner of oaths has any doubt
as to the deponent’s
inability to write he shall require such
inability to be certified at the foot of the declaration by some
other trustworthy person.
4(1)   Below
the deponent’s signature or mark the commissioner of oath shall
certify that the deponent has acknowledged
that he knows and
understands the contents of the declaration and
he shall state the
manner, place and date of taking the declaration
.
(2)
The commissioner of oaths shall –
(a)
sign the declaration and print his full name and business address
below his signature; and
(b)
state his designation and area for which he holds his appointment or
the office held by him if he holds
his appointment ex officio.”
(emphasis added)
[16]
The
regulations have been promulgated in terms of s10 of the
Justices
of the Peace and Commissioners of Oaths Act
[5]
.
Section 10(1)(b) confers upon the Minister of Justice the power to
make regulations,
“
(b)
prescribing the form and manner in which an oath or affirmation shall
be administered and a solemn or attested declaration
shall be taken,
when not prescribed by any other law;
[17]
Section 5 of the Act confers upon the Minister of Justice or officer
delegated thereto the power to appoint ‘any person
as a
commissioner of oaths for any area fixed by the Minister or delegated
officer’. Section 7 deals with the powers of commissioners
of
oaths. It states that:
“
Any commissioner
of oaths may, within the area for which he is a commissioner of
oaths, administer an oath or affirmation to or
take a solemn or
attested declaration from any person . . .”
[18]
The proviso
to this latter provision prohibits the commissioner from
administering an oath or affirmation in relation to matters

circumscribed by regulation or if the person is unwilling to make the
oath or affirmation.
[6]
[19]
Section 8 deals with the administration of oaths or affirmations
outside of the borders of the Republic. Section 8(1)(a) and
(b)
provide for the appointment of holders of any office in a country
outside the Republic as commissioners of oaths at the place
where
they hold office. Subsection (2) requires the authentication of the
affidavit or declaration by attaching the seal of the
office and that
such commissioners exercise the powers of commissioners at such
place. In terms of ss 8(3),
“
Any affidavit,
affirmation or solemn or attested declaration purporting to have been
made before a person referred to in subsection
(1) and to be
authenticated in accordance with the provisions of subsection (2),
may on its mere production, be admitted in evidence
in any court or
received in any public office.”
Subsection
(4) provides that any affidavit ‘made before a person’ as
described shall be as effectual as if made in the
Republic.
[20]
These provisions of the Act reflect a clear concern with physical or
territorial jurisdiction. Commissioners are appointed
for defined
areas and may only exercise their powers within such areas, unless
they exercise such powers by virtue of their office.
In this event,
their authority to administer oaths or affirmations is not area
bound. This concern with territoriality is relevant
to contextual
interpretation of the Regulations.
‘
In
the presence of’
[21]
The
New Shorter Oxford Dictionary
provides multiple contextual
meanings for the word ‘presence’. Its meaning is given
as, ‘the fact or condition
of being present; the state of being
with or in the same place as a person or thing; attendance,
association.’ It is also
given as ‘the place or space
around or in front of a person.’ The phrase ‘in the
presence of’ suggests
‘in the company of, observed by.’
[22]
In
Gulyas
v Minister of Law and Order
[7]
the court considered the meaning of the phrase ‘in the presence
of’ in the context of s 40(1
)(b)
of the
Criminal
Procedure Act
[8]
.
That section deals with the authority of a peace officer to execute
an arrest, without a warrant, where the offence is committed
in his
presence. The court accepted that the ordinary dictionary meanings of
the phrase indicate that ‘in the presence of’
a policeman
means within eyeshot of that policeman or in his immediate vicinity
or proximity.
[9]
[23]
The court,
however, held that in the context of that section and having regard
to its purpose, ‘presence’ means immediate
proximity. The
court said
[10]
:
“
I am not at all
convinced that, as a matter of language, ‘in his presence’
covers the use of ‘bugging devices,
telescopes, and other aids
to perception’, for ‘presence’ in its ordinary
meaning excludes the notion of long
range perception. A detective who
only hears, by means of a listening device, two persons apparently
committing the offence of
illicit diamond buying does not see them do
this and cannot be sure who is involved. A policeman who, by means of
binoculars, observes
a murder across a ravine, too far away to do
anything about it there and then, cannot say that it was committed in
his presence
even though it happened within eyeshot.
Which simply brings us
back to the ordinary meaning of the word ‘presence’ as
used by ordinary literate people: the
peace officer must be there on
the scene, close enough to see, hear, feel or smell enough to lead
him to the reasonable conclusion
that an offence is being committed
or has just been committed.”
[24]
The
interpretation adopted in the
Gulyas
matter is one that is pertinent to the context: namely the basis upon
which an arrest without a warrant would be lawful. Different

considerations might apply in relation to the administration of an
oath. As stated by Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[11]
:
“
.Interpretation is
the process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument,
or contract,
having regard to the context provided by reading the particular
provision or provisions in the light of the document
as a whole and
the circumstances attendant upon its coming into existence. Whatever
the nature of the document, consideration must
be given to the
language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact
made. The 'inevitable
point of departure is the language of the provision itself', read in
context and having regard to the purpose
of the provision and the
background to the preparation and production of the document.”
[25]
The
language of Regulation 3(1) when read in the context of the
Regulations as a whole, suggests that the deponent is required to

append their signature to the declaration in the physical presence or
proximity of the commissioner. This accords with the concern
for
place, insofar as the exercise of the authority to administer an oath
is concerned, as appears from the Act. Regulations 2,
3 and 4 must be
read as a whole since they provide for the manner in which an oath or
affirmation is administered. The process
follows a logical sequence
which requires the commissioner to satisfy themselves that the
deponent understands the nature of the
oath; administer it; obtain
confirmation of the taking of the oath by signature on the document
and thereafter, to append their
signature with details of place, area
and designation. These latter steps are to occur in the presence of
the commissioner. It
is apparent that the entire process is envisaged
to occur in the presence of the commissioner. The essential purpose
of the Regulations
is to provide assurance, to a court receiving an
affidavit, that the deponent, properly identified as the signatory,
has taken
the oath. The signature of the declaration in the presence
of the commissioner establishes a guarantee that the consequences of

oath taking are understood and accepted.
[12]
[26]
It was argued, however, that ‘presence’ although
ordinarily meaning proximity, may nevertheless be achieved by
sight
and sound. A live video stream in which both parties were able to see
and hear the other, to observe their actions and to
identify one
another, could, for purposes of the Regulations, achieve all of the
purposes that physical proximity achieves. On
this basis, the
‘virtual’ presence achieved by the technology falls with
the ambit of the meaning of the phrase.
[27]
For reasons that follow, I do not agree. The starting point, it must
be emphasized, is an exercise in interpretation. This
requires that
meaning be assigned to the phrase on the basis of the language used,
of what was intended and what the purpose was
of the provision.
[28]
There can be little doubt that our conception of what it means to be
in the company of others or to enjoy the presence of others
is
undergoing dramatic changes brought about by technological
innovation. This has been accelerated by the experience of a global

pandemic. There can also be no doubt that the adoption of
technologies such as digitalized documents, internet based
communications,
‘cloud’ computing and video streaming has
already done a great deal to transform and improve justice systems.
No doubt
this will continue. But the cautionary note sounded by
Wallis JA, as regards the process of interpretation, bears
repetition:
“
Judges must be
alert to, and guard against, the temptation to substitute what they
regard as reasonable, sensible or businesslike
for the words actually
used. To so do in regard to a statute or statutory instrument is to
cross the divide between interpretation
and legislation; . . .”
[29]
In my view, the plain meaning of the expression ‘in the
presence of’ within its context in Regulation 3(1), requires

that the deponent to an affidavit takes the oath and signs the
declaration in physical proximity to the commissioner. The Regulation

does not therefore cover such deposition in the ‘virtual
presence’ of a commissioner.
The
provisions of ECTA
[30]
Before turning to the question of the directory nature of the
Regulations and the question of substantial compliance, it is

necessary to digress briefly to the provisions of
ECTA
.
[31]
The plaintiff placed great reliance upon the provisions of
ECTA
and compliance with its terms. Chapter III of
ECTA
provides a
framework for facilitating electronic transactions. The Chapter
provides,
inter alia
, legal recognition to ‘data
messages’ and electronic signatures. The relevant portions of s
13 of
ECTA
provide that:
“
(1)
Where the signature of a person is required by law and such law does
not specify the type of signature, that
requirement in relation to a
data message is met only if an advanced electronic signature is used.
(2)
Subject to subsection (1), an electronic signature is not without
legal force and effect merely on the
grounds that it is in electronic
form.
(3)
. . .
(4)
Where an advanced electronic signature has been used, such signature
is regarded as being a valid electronic
signature and to have been
applied properly, unless the contrary is proved.”
[32]
Section 18, which is also relevant to the present matter provides in
subsection (1), that:
“
Where a law
requires a signature, statement or document to be notarized,
acknowledged, verified or made under oath, that requirement
is met if
the advanced electronic signature of the person authorized to perform
those acts is attached to, incorporated in or logically
associated
with the electronic signature or data message.”
[33]
The observation may be made that
ECTA
provides a comprehensive
framework for a digital based economy. That, indeed, was one of the
objects sought to be achieved by facilitating
e-commerce, electronic
government services and the like. The legal recognition of electronic
signatures and the provisions for
the reception in evidence of data
messages extracted from computer storage systems, is central to this
purpose of
ECTA
.
[34]
In relation
to the matter presently before this court, it may be observed that
there exists no legal impediment to the type of ‘digital

affidavit’ to which Mr Gomes referred. Nor, it seems to me, can
there be any difficulty with the employment of electronic
signatures
for the signature of such a digital affidavit. Section 18(1)
specifically envisages the attachment of an advanced electronic

signature
[13]
by a
commissioner of oaths to a document required to be made under oath.
The production of a digital affidavit which has been signed

electronically, to be used in court proceedings may be adduced in
accordance with s 15(1) read with s 15(4). There is therefore
no
reason why digital affidavits cannot be employed, subject to
deposition as provided by Regulation 3(1).
[35]
However, in relation to the central issue at stake, the provisions of
ECTA
do not assist. The question is not whether electronic
signatures may be used or even whether an affidavit may be in digital
form.
ECTA
provides as much. The question is solely whether,
for purposes of Regulation 3(1), a video or virtual link may be
employed. As
I have already indicated, I do not consider that the
Regulation may be so interpreted.
Substantial
compliance with Regulation 3(1)
[36]
In
S
v Munn
[14]
it
was held:
“
In my view, both
the 1961 and 1972 regulations are directory only and the reasoning in
cases such as
Ex parte Vaughan
,
1937 C.P.D. 279
;
Mtembu v.
R.,
1940 N.P.D. 7
; and
R. v. Sopete
,
1950 (3) S.A. 769
(E), irrefutable. These deal with the directive that the commissioner
is to certify in the
jurat
that the deponent “knows and
understand” the contents of the relevant document. But they are
in my view equally applicable
to the question of signature by the
deponent.”
[37]
The case involved a charge of statutory perjury brought against a
deponent to an affidavit. At the trial, the defence contended
that
the affidavit was invalidated because the deponent had signed the
declaration before the oath was administered. He was acquitted
and
the matter was taken on appeal by the Attorney-General. The central
question was whether signature before taking the oath
ipso facto
invalidates the affidavit.
[38]
The court
reasoned as follows
[15]
:
“
A study of the
history and purpose of the administration of the oath leads to the
view that the purpose of obtaining the deponent’s
signature to
an affidavit is twofold: to add to the dignity or impressiveness of
the occasion (cf.
Wigmore,
vol. VI, sec. 1819, pp 296-7) but
primarily to obtain irrefutable evidence that the relevant deposition
was indeed sworn to. The
former aim would be frustrated were the
signatory to sign an unsworn statement; and for the latter purpose
the signature is valueless
to prove that the deponent swore to the
affidavit if admittedly signed before the oath was taken.
But if
uncontradicted evidence were to be adduced that he was indeed aware
of the solemnity of the occasion and voluntarily took
the oath as to
the veracity of the contents of the document, it would in my view be
to place form before substance to allege that
the document produced
is nevertheless invalid
.
Compliance with the
regulations provides a guarantee of acceptance in evidence of
affidavits attested in accordance therewith, subject
only to defences
such as duress and possibly undue influence. Where an affidavit has
not been so attested, it may still be valid
provided there has been
substantial compliance with the formalities in such a way as to give
effect to the purpose of the legislator
as outline above.”
(emphasis added)
[39]
The
question of substantial compliance is a matter of fact.
[16]
Munn
was decided on appeal. The matter was referred back to the trial
court to determine, as a matter of fact, whether there had been

substantial compliance with the regulations.
[40]
R v
Sopete
[17]
,
referred to by the court in
Munn
,
dealt with a situation where the deponent had signed the declaration
prior to the oath being administered and not in the presence
of the
commissioner. The Regulations which then applied made provision for
the deponent to again sign the declaration after the
oath had been
administered. This latter signature was not appended. It was,
however, not in issue that the oath was administered
to the deponent
in the presence of the commissioner. The court said the following
about the directory nature of the regulations:
“
But to say that
the provisions are directory does not mean that all the rules are
treated as ‘wasted paper’, for they
are by the decisions
already quoted treated as of great value and failure to comply with
them gives the Court a discretion to treat
the affidavit as of no
value in proper cases.”
[41]
The case of
R v
Mtembu
[18]
(also cited in
Munn
)
was one in which the commissioner had not appended his certificate
affirming that the deponent knew and understood the oath. The
issue
arose in the context of a criminal trial for perjury. Evidence was,
however, presented at the trial by the commissioner that
he had
explained to the deponent the nature of the oath. On appeal, it was
affirmed that the regulations are directory and that
substantial
compliance was established.
[42]
An
examination of the law reports indicates that substantial compliance
has been found to be established in circumstances where
the failure
to comply related to form; to the manner in which the oath was
administered or the sequence of events; or to omissions
by either the
deponent or the commissioner
[19]
.
Thus in
Ladybrand
Hotels (Pty) Ltd v Stellenbosch Farmers’ Winery Ltd
[20]
it was held that the Regulations did not require that a commissioner
should in terms certify that the declaration was signed in
their
presence. The court went on to say that even if that were required it
was apparent from the declaration and what was certified
that it was
signed in their presence and accordingly that the affidavit
substantially complied.
[43]
In
Dawood
v Mahomed
[21]
the commissioner had, instead of furnishing a business address as
required by Regulation 4(2), appended a private bag number. The
court
said the following
[22]
:
“
In deciding
whether the non-compliance is of such a nature that the Court should
refuse to entertain the affidavit it is clearly
relevant to have
regard to the nature and purpose of the requirement with which there
has been failure to comply. In the present
case it seems to me that
the reason for the requirement that the commissioner should furnish
his business address is to facilitate
the task of anyone who might
thereafter wish to locate him for any purpose connected with the
affidavit and its execution. In the
present case the information
supplied is sufficient to enable anyone of ordinary intelligence to
deduce that the business address
of the commissioner of oaths is the
offices of the rent board at Durban and the non-compliance is in my
view of so trifling a nature
that there would be no justification for
excluding the affidavit purely on this ground.”
[44]
Similar
reasoning in regard to ‘formal defects‘ is to be found in
Standard
Bank of South Africa Ltd and Another v Malefane and Another
[23]
,
where the defect related to reference to the incorrect Government
Notice referencing the Regulations.
[45]
This brings
me to the judgment in
Knuttel
N.O and Others v Bhana and Others
[24]
.
As far as I am aware, this is the only instance where a court in this
country has admitted an affidavit deposed by way of a virtual
video
link. The underlying dispute in the
Knuttel
matter is not germane, save in one respect to which I will refer
hereunder. The question regarding compliance with Regulation 3(1)

arose as an ancillary,
in
limine
issue, in the context of what amounted to an application for
eviction. The deponent to the founding affidavit was, at the time

that it was attested, infected with the Covid 19 virus. A copy of the
affidavit was emailed to her and she signed it. It was emailed
back
to the attorney. The attorney attended in person before a
commissioner of oaths. The commissioner made a video call to the

deponent, confirmed her identity and then administered the oath. The
commissioner appended his signature to the declaration. The
attorney
deposed to an affidavit setting out these facts.
[46]
The court in
Knuttel
accepted that the Regulations are
directory rather than peremptory. It considered that the purpose of
the declaration by the commissioner
is to provide assurance that the
deponent has indeed taken the oath, knows and understands its effect
and is the person who signed
the declaration. All of these purposes,
it held, were met by the steps taken by the attorney. Accordingly,
the affidavit substantially
complied with the Regulations.
[47]
It is, in my view, important to note that the finding by the court in
Knuttel
was, essentially,
obiter
. The court
specifically found that the challenge to the founding affidavit was
moot and served no practical effect, since the averments
set out
therein were before the court in another affidavit which had been
properly deposed. A further point to note is that the
question of
substantial compliance with the Regulations arose because it was not
possible for the deponent to comply with the regulations.
That is not
the situation in the present matter.
[48]
The
authorities referred to earlier make it plain that the Regulations,
save where couched in negative terms
[25]
,
are directory. Accordingly, where those regulations have not been
followed and adhered to, a court has a discretion whether or
not to
admit the affidavit. In such circumstances the court will determine
whether there has been substantial compliance with the
regulations.
That determination is one of fact having regard to the circumstances
of the case.
[49]
This brings me to the particular circumstances of this matter and
whether I should exercise my discretion to admit the affidavits

deposed to virtually. In addressing this, two factors must be
highlighted. The first bears upon what may be termed rule of law

considerations. The second, upon the function of courts in dealing
with novelty and innovation that falls outside of the ambit
of an
existing regulatory framework.
[50]
In this matter the plaintiff elected to employ a new technology
platform to digitize its preparation of affidavits for use
in legal
recoveries. Whilst it broadly framed its decision to do so in the
context of the Covid 19 pandemic, its election represents
a
particular choice of business innovation. It is entirely free to do
so. From what has been disclosed there are no doubt very
significant
advantages to so doing. As I understand it, the LexisSign system, it
seems to me, offers considerable security and
other advantages. It
may be that many of the inherent risks associated with fraudulent
document attestation in the ordinary manner
and which the Regulations
seek to address, will be overcome by use of technological innovation
such as that employed in this case.
[51]
The advantages of the system used by the plaintiff are, however, not
a basis upon which an existing Regulation may be ignored.
It is, in
my view, not open to a person to elect to follow a different mode of
oath administration to that which is statutorily
regulated. That is
true even if in doing so every effort is made to substantially
comply. The regulations stipulate that the declaration
is to be
signed in the presence of the commissioner. Unless that cannot be
achieved, the
Regulations must be followed
.
The fact that the Regulation is directory does not mean that a party
can set out to achieve substantial compliance with such regulation

rather than to comply with its requirements.
[52]
In the
Knuttel
case the need to protect persons from
infection with Covid 19 precluded the appearance of the deponent
before the commissioner.
In the
Munn
,
Sopete
and
Mtembu
matters, all of which involved criminal
prosecutions, the non-compliance was inadvertent and related to form.
That was also the
case in the other instances I have highlighted.
When a court is asked to exercise its discretion to condone
non-compliance, the
reasons advanced for such non-compliance are
plainly relevant. I doubt that a court would readily accept that an
affidavit substantially
complies with regulated formalities in
circumstances where the non-compliance is as a result of a deliberate
choice. In my view,
to do so would countenance a situation of
self-help
[53]
I accept that the plaintiff was here motivated by a desire to support
broader efforts at digitalisation and in the interests
of combatting
the spread of the Covid 19 virus. I accept that it has acted entirely
bona fide
. However, where, as in the present situation,
legislative action would be required to recognise and legitimize the
use of technologies
such as those proposed by the plaintiff, it is to
the legislature or to the Minister of Justice in this case, that
persuasion should
be directed.
[54]
This touches upon the second aspect, namely the function of the
courts in dealing with such innovations. I have already adverted
to
the risk, at interpretation stage, of straying into the realm of the
legislature. It is not the function of the courts to legislate.
That
power lies with the legislator and, in the case of these Regulations,
with the relevant Minister in the Executive. Where the
courts
exercise authority to regulate their own procedures in the interests
of justice and where they have rule-making powers,
novel or
innovative adaptations can be made. The use of video-based hearings
to conduct proceedings during the National State of
Disaster is a
case in point. So too the many Court Practice Directives issued to
similar effect or those that relate (in the Gauteng
Division) to the
use of CaseLines, a digital document and evidence management
platform. But the Regulations are not subject to
such court-based
rule making powers.
[55]
I have no doubt that, in the present case, regulations can be framed
to bring them in line with the broader objects of
ECTA
and to
facilitate the use of technologies such as LexisSign. Such
legislative exercise will no doubt then be able to address a range
of
policy questions which are relevant to this issue. This would include
issues of territoriality in the exercise of the powers
of
commissioners of oaths and matters regulated by Rule 63 of the Rules
of Court, which deals with the attestation of documents
in a foreign
country. This ‘territorial’ question is plainly one that
arises where administration of oaths or attestation
occurs virtually.
It would also allow important questions of access to digital
attestation services to be addressed and for guidance
to be drawn
from comparable development in other jurisdictions. These are matters
well beyond the province of a court and are best
left to the
legislature.
[56]
It follows
from what I have said that I would be disinclined to receive the
affidavits given the elected non-compliance with the
Regulations.
However, the discretion with which I am vested must be exercised
judicially, upon consideration of all the relevant
facts and in the
interests of justice
[26]
.
[57]
There can be no doubt that the evidence placed before me establishes
that the purposes of Regulation 3(1) have been met. To
refuse to
admit the affidavits would, of course, highlight the importance of
adhering to the principle of the rule of law. That
point is, I
believe, made plain in this judgment. To require the plaintiff to
commence its application for default judgment afresh
upon affidavits
which would contain the same allegations but which are signed in the
presence of a commissioner of oaths would
not, in my view, be in the
interests of justice. There is after all no doubt that the deponents
did take the prescribed oath and
that they affirmed doing so. It
would therefore serve no purpose other than to delay the finalisation
of this matter with an inevitable
escalation of costs, not to receive
the affidavits. In the circumstances, I accept the affidavits deposed
to in the manner described
in this judgment as complying in substance
with the provisions of the Regulations.
[58]
I therefore make the following order:
1. The affidavits filed
by the plaintiff in support of its claim for judgment by default are
admitted on the basis that they substantially
comply with the
provisions of the Regulations.
2. The defendant is
ordered to pay to the plaintiff the sum of R928 138.42;
3. The defendant is
ordered to pay interest on the said amount of R928 138.42, calculated
daily and compounded monthly, at a variable
rate, being the
plaintiff’s Homeloan Mortgage base rate varied by the plaintiff
from time to time, which variable interest
rate was the rate of 6.85%
nominal per annum, with effect from 25 October 2021 to date of final
payment, both days inclusive;
4. The defendant is
ordered to pay the plaintiff’s costs of suit, to be taxed as
between attorney and client.
________________________
G.G.
GOOSEN
JUDGE
OF THE HIGH COURT
Appearance
:
Obo
the Plaintiff
:

Adv A. White
Instructed
by
:

Minde Schapiro & Smith Inc
Heard

:

19 April 2022
Delivered
:

5 May 2022
[1]
Act
No. 34 of 2005.
[2]
Act
No. 25 of 2002.
[3]
GN R1258 of 21 July 1972, amended by GN R1648 of 19 August 1977, by
GN R1428 of 11 July 1980 and by GN R774 of 23 April 1982.
[4]
Act
No. 16 of 1963.
[5]
Act
No. 16 of 1963.
[6]
The
Regulations preclude a commissioner from taking a declaration in
relation to subject matter in which he has an interest.
[7]
1986
(3) SA 934 (C); [1986] 3 All SA 357 (C).
[8]
Act
No. 51 of 1977.
[9]
Gulyas
v Minister of Law and Order
1986 (3) SA 934
(C) at 940D.
[10]
Gulyas
p 958I-959B.
[11]
2012
(4) SA 593
(SCA) at 603F-604D.
[12]
See
S v Munn
1973 (3) SA 734
(N) at 737E.
[13]
An
advanced electronic signature is one which is assigned to a person
in accordance with a system of accreditation referred to
in s 37 of
ECTA
.
As indicated by Mr Gomes it is a signature uniquely assigned to the
accredited person and its use carries with it a presumption
of
authenticity.
[14]
1973
(3) SA 734 (NC).
[15]
At
737F-H.
[16]
S
v Munn p 738A.
[17]
1950
(3) SA 769
(E) at 774F-G.
[18]
1940
NPD 7.
[19]
See
Nkondo v Minister of Police and Another
1980 (2) SA 362
(O); Cape
Sheet Metal Works (Pty) Ltd v J J Calitz Builder (Pty) Ltd 1981 (1)
SA 697 (O).
[20]
1974
(1) SA 490 (O).
[21]
1979
(2) SA 361 (D).
[22]
Dawood
v Mahomed (
supra
)
at 367F-F.
[23]
2007
(4) SA 461
(TK) at 465A-D.
[24]
Unreported
case, 38683/2020, Gauteng Division, Johannesburg, 27 August 2021.
[25]
See
Regulations 6 and 7 cf Radue Weir Holding Ltd t/a weirs Cash &
Carry v Galleus Investments CC t/a Bargain Wholesalers
1998 (3) SA
677 (E).
[26]
Cf
Dawood v Mahomed (
supra
)
at 365A.