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2024
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[2024] ZALMPPHC 117
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Mogale v BMW Finance Services (South Africa) (Pty) Ltd (5528/2020) [2024] ZALMPPHC 117 (11 September 2024)
FLYNOTES:
CIVIL PROCEDURE – Commissioner of oaths –
Gender
of deponent
–
Regulations
oblige commissioner to properly identity gender of deponent –
Certificate states deponent's gender as both
male and female –
Irregular – Usage of contradictory and confusing pronouns
resulted in disjoint between deponent's
declaration and
commissioner’s certificate – Affidavit not properly
commissioned – Objection to opposing
affidavit sustained –
Regulations Governing the Administering of an Oath or Affirmation,
regs 3(1) and 4(1).
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRJCA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 5528/2020
1. REPORTABLE: YES
2. OF INTREST TO THE
JUDGES: YES
3. REVISED
In the matter between:
MOHALE
RAOFE EZEKIEL MOGALE
(
IDENTITY NUMBER 6[...])
Applicant
And
BMW
FINANCE SERVICES( SOUTH AFRICA)(PTY)
LTD
(REGISTRATION
NUMBER: 1990/004670/07)
Respondent
In
re:
BMW
FINANCE SERVICES( SOUTH AFRICA)(PTY) LTD
(REGISTRATION
NUMBER: 1990/004670/07)
Plaintiff
And
MCHALE
RAOFE EZEKIEL MOGALE
(
IDENTITY NUMBER 6[…])
Defendant
Delivered:
This judgment
is
handed down electronically by circulation to the parties through
their legal repre
entative
'
email
addres
es.
The
date for the
hand-down
is
deemed
to
be
the
11
th
September
2024
JUDGEMENT
LEDWABAAJ
Introduction
1.
The applicant raises a dispute about the opposing
affidavit deposed to by Rian
Lubbe
on behalf of the respondent. He submits that because the deponent
declared that
he
is
a
male, the
Commissioner
of
Oaths
certificate
states
the
deponent's gender as both male and female, it is
irregular, makes it unclear as to who is the deponent and is
prejudicial to him
as the applicant.
2.
In the disputed opposing affidavit, the deponent
describes himself as "
an adult
male".
In the certificate below
the deponent's signature, the Commissioner of Oaths states that "
THE DEPONENT HAVING ACKNOWLEDGED THAT HE
KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIFAVIT, THAT SHE HAS NO
OBJECTION AGAINST
TAKING THE PRESCRIBED OATH AND THAT SHE CONSIDERS
THE PRESCRIBED OATH TO BE BINDING ON HER CONSCIENCE".
3.
The applicant's complaint relates to the pronoun
"SHE''
that
appears twice in the Commissioner of Oath's certificate along with
"HER"
,
when they are read with the description
"an
adult male"
and
"HE".
4.
The applicant's submission is that while the
deponent declares that he is male, the Commissioner
of
Oath certifies that he is male (
with "HE"
in the first part)
and female( with "SHE
and "HER" in the second part) .
5.
I understand the applicant's submission to be that
the difference meant the affidavit was not commissioned
in
the prescribed
manner, making
it
highly probable
that
the prescribed oath was not administered by the
Commissioner
of Oaths in the presence of
the deponent.
6.
The other issue raised
by
the applicant
is that the respondent's
opposing
affidavit was
served and filed on the 3rd
March 2022
instead of the 10
th
February 2022. It was delivered fifteen days
outside the prescribed period without condonation
application
explaining the delay.
7.
The background is that the applicant applies for
the dismissal of the condonation application sought by the
respondent. The respondent
has delivered the disputed opposing
affidavit
against the
dismissal
application. The applicant's
submission
is that the
respondent's opposing affidavit does not comply with the Regulations
made under Section 10 of the Justice of the Peace
and Commissioner
of Oath Act 16 of 1963 (the Act) and it was
delivered outside the required period without condonation
application. The opposing
affidavit should be ignored for the
applicant's dismissal application to be dealt with on unopposed
basis.
The legal framework
8.
Commissioner
of oath is
done in terms of the Act. The Act was passed to consolidate and amend
the laws
relating
to
the appointments,
powers
and duties of
justices
of the peace and Commissioners
of Oaths.
9.
Section
5 of the Act
empowers the Minister to appoint a Commissioner of Oaths for any
fixed area to
hold that office during the
Minister's pleasure.
10.
Section 7 of the Act empowers any Commissioner of
Oaths to administer an oath or affirmation to
or
take a solemn
or attested declaration
from any person within the area for which she/he
is a Commissioner of Oaths.
11.
Section
10 of the Act
gives the President
the power
to
make
regulations
generally for
the
better
carrying
out
of
the
objects
and
purpose
of
the
Act,
including
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.
12.
In terms of Regulation 2(2), if a deponent
acknowledges that she/he knows and understands
the
contents of the declaration and informs a Commissioner
of
Oaths that
she/he
does
not
have
any
objection
to
taking
the
oath
and
that
she/he
considers it to be binding on her/his conscience, a Commissioner of
Oaths shall administer the oath prescribed by Regulation
1(1)
13.
Regulation
3(1)
states
that the deponent
shall
sign
the
declaration
in
the
presence of Commissioner of
Oaths.
14.
In terms of Regulation 4(1), below a deponent's
signature or mark, a Commissioner of Oaths shall certify that the
deponent has acknowledged
that she/he knows and understands the
contents of the declaration.
Analysis
15.
Rule
6(5)
(d)(ii)
of
the Uniform
Rules
requires
that
any
person
opposing
the granting of
an order sought must serve and file an answering affidavit.
16.
An
affidavit can be described as a written statement sworn to by a
deponent in the presence of and before a Commissioner
of
Oaths.
[1]
A deponent is required
to appear in person before a Commissioner
of
Oaths
17.
An
affidavit must satisfy the general requirements as contained in the
Regulations promulgated
in
terms of section 10 of the Act( the Regulations).
[2]
18.
It is
a basic requirement of an affidavit that it must be signed in the
presence of a Commissioner of Oaths.
[3]
Regulation
3 (1) requires a deponent
to
sign a declaration or make a mark in the presence of Commissioner
of
Oaths.
19.
Where
the Commissioner
of
Oaths has failed to indicate whether a deponent is male or female,
the
inference is
irresistible
that
a
deponent
did
not
appear
in
person before a Commissioner Oaths.
[4]
20.
Regulation
2(2) read
with 4(1) requires a deponent to acknowledge that she/he knows
and
understands
the
contents
of
the
declaration
and
that
she/he
does
not have any
objection to taking the oath which she/he considers to be binding on
her/his conscience. A Commissioner of Oaths must
certify this below a
deponent's signature or mark.
21.
I read Regulations 3(1) and 4(1) to oblige a
Commissioner of Oath to properly identity the gender of a deponent.
This identification
is an indication that a deponent appeared before
a Commissioner of Oaths as required by Regulation 3(1)
22.
Should
a Commissioner of Oath not certify that an affidavit was sworn to or
affirmed, the court will be reluctant to assume its
regularity.
[5]
23.
The use of proper pronoun in certifying that the
deponent has acknowledged that she/he understands the contents of the
declaration
and regards as binding to her/his conscience is
imperative.
24.
Non-compliance
with the requirement of a certificate that the deponent has
acknowledged that he/she knows and understands the contents
of the
affidavit is directory. This may be condoned at the discretion of the
court.
[6]
25.
Depending
upon whether substantial compliance with the Rgulation has been
proven or not, the court has a discretion to refuse to
receive an
affidavit attested otherwise than in accordance with the
regulations.
[7]
26.
In
this case, for the purpose of exercising the discretion whether to
condone the respondent's
opposing
affidavit,
regard
must
be had
to
Rule
6(5)(d)(ii)
of
the
Uniform Rules. It
requires
an opposing
party
to respondent by way of an affidavit.
[8]
27.
The
only available documents to be used for the purpose of discretion are
founding and opposing affidavits. There is no supporting,
confirmatory or supplementary affidavits by either a Commissioner of
Oaths or deponent that support substantial compliance.
[9]
28.
In
this case the
opposing affidavit declares the deponent as an adult male. In
certifying that the deponent has acknowledged that he
knows and
understands the contents
of
the
declaration
and
that
he has
no
objection
to
taking
the
prescribed oath he considers binding on his
conscience, the Commissioner of Oaths confusingly certified the
deponent as male and
female in the same sentence. The Commissioner of
Oaths' usage of contradictory and confusing pronouns resulted in the
disjoint
between the deponent's declaration and the Commissioner
of Oaths certificate
29.
Like in the Oosthuizen case, in this case the
Commissioner of Oaths certificate described
the
deponent as both male and female.
30.
In
both
Absa
and
Oosthuizen
cases,
the
affidavits
were not
received
by
the
courts for non-compliance with the regulations.
31.
I decline to condone the non-compliance with the
Regulations and find that the purported
opposing
affidavit
was
not
properly
commissioned.
The
applicant's
point in
limine in this
regard
should
be
upheld
32.
This
order should
provide the respondent, if so advised, with an opportunity to address
the complaint.
33.
In
view
of
the decision I
made
regarding
the respondent's
affidavit,
it
is not necessary
to
decide
whether
it
is in the interest
of justice that the late delivering
of
the respondent's opposing affidavit should be condoned or not.
34.
The respondent
is given
an indulgence
which should
not
be at the applicant's
costs. There is no
reason why the respondent should not pay the costs for indulgence.
Order
(a)
The
objection
of
the
plaintiff
to
the
attestation
of
the
defendant's
opposing
affidavit is sustained,
(b)
The respondent is granted leave to have its
opposing affidavit re-attested or supplemented, if so advised.
(c)
The respondent's re-attested supplemented
affidavit is to be served and filed within fifteen
days of the date of this order
(d)
The respondent is ordered to pay the costs of this
application
on party and party scale.
LEDWABA LGP
ACTING
JUDGE OF THE HIGH COURT
POLOKWANE; LIMPOPO
DIVISION
APPEARANCES
FOR
THE APPLICANT:
INSTRUCTED
BY:
No
heads filed
Lebepe
and Associates
30
Voortrekker Street
POLOKWANE
FOR
THE RESPONDENT:
INSTRUCTED
BY:
DATE
OF HEARING:
DATE
OF JUDGMENT:
Adv
Chuene
MACROBET
INC
C/O
Espag Magwai Attorneys
26
Jorrissen Street
POLOKWANE
2
AUGUST 2024
11
SEPTEMBER 2024
[1]
Oosthuizen
v Steyn (2020) ZAGPPHC 161; 2021(4) SA 307(GP)( Oosthuizen)- par 31
[2]
Absa
Bank Ltd v Botha NO & Others (39228/12)(2013) ZAGPPHC 163; 2013
(5) 563(GNP)( Absa) -
par
6
[3]
Absa-para
7 and 12
[4]
Oosthuizen-
par 31
[5]
Absa-
par 8
[6]
Oosthuizen-
par
29
[7]
Absa-
par
8.
Oosthuizen-
par
30
[8]
Ooshuizen-
para
31
and
33
[9]
Absa-
par 12