JHB High Court Rules on Virtual Commissioning Requirements
Brought to you by SA Accounting Academy: The Johannesburg High Court has clarified the legal status of virtual commissioning, confirming that while the current regulatory framework requires physical presence, courts retain discretion to admit remote affidavits in specific circumstances.
In terms of Regulation 3(1) of the Regulations Governing the Administering of an Oath or Affirmation (Government Notice R1258 of 1972), a deponent is required to sign an affidavit in the physical presence of a commissioner of oaths. The court in ZAGPJHC 1008 noted that this regulation, drafted prior to the advent of modern digital communication, assumes the parties are in the same location. Consequently, virtual commissioning is not formally permitted under the existing Justices of the Peace and Commissioners of Oaths Act, No. 16 of 1963.
Despite the statutory requirement for physical presence, the court affirmed its judicial discretion to admit virtually commissioned affidavits if doing so is in the “interests of justice.” This discretion is exercised where there has been substantial compliance with the regulations. However, practitioners are cautioned that this does not constitute a general relaxation of the law, and legislative reform by Parliament is required to fully legalise remote commissioning.
Requirements for Foreign Deponents
For deponents located outside South Africa, the court highlighted that Section 8 of the Justices of the Peace and Commissioners of Oaths Act, No. 16 of 1963 dictates the procedure. This requires the use of a foreign official, such as a notary, authorised by Gazette notice, followed by proper authentication. Attempting to use a South African commissioner via video link for a person abroad does not satisfy the requirements of Section 8.
Where video commissioning is utilised as a necessity, the court suggested that practitioners maintain rigorous records, including:
- Identity verification checks;
- Timestamps and screenshots of the session; and
- A confirmatory affidavit from the commissioner of oaths explaining the circumstances.
Click here to download the full judgment: JHB High Court Case ZAGPJHC 1008.
What this means for you, your business, or your clients
- For yourself: When acting as a commissioner of oaths, you must ensure physical presence with the deponent to guarantee the validity of the document, as virtual commissioning remains technically non-compliant with Regulation 3(1).
- For your business: Update internal legal and compliance manuals to mandate that foreign deponents follow the Section 8 authentication process rather than attempting remote commissioning with South African officials.
- For your clients: Advise clients that affidavits commissioned via video link carry a high risk of being contested and should only be used where physical presence is impossible, supported by a detailed audit trail to satisfy the “interests of justice” test.
Originally published at https://accountingacademy.co.za/news/read/jhb-high-court-virtual-commissioning-in-a-digital-era