ELECTRONIC SIGNATURES / VIRTUAL COMMISSIONING OF AFFIDAVITS
Before the onset of the COVID-19 pandemic, the terms ‘Teams’ and ‘Zoom’ were virtually unheard of in general, and were, for all intents and purposes, not tools in most businesses.
However, within weeks after the outbreak of the global COVID-19 pandemic, hard lockdowns were imposed by many countries, which severely restricted the movement of people.
The adoption of virtual (remote) technologies, and more specifically video conferencing via internet based digital platforms, became the norm for most businesses and their employees.
Additionally, new rules and directives were issued within the legal sector, and in court justice systems, in order that courts continue to provide access to justice systems during the lockdown period.
Despite the fact that these restrictions on movement are a thing of the past, and generally speaking, ‘things are back to normal’, for the purposes of carrying on business, and considering the convenience factor, however, not limited thereto, these technologies have continued to be widely utilized.
In the matter of Firstrand Bank Limited (“Firstrand Bank”) v Jacques Louis Briedenhann (“Briedenhann”) 3690/2021 the Eastern Cape High Court was required to decide on whether the Regulations Governing the Administering of an Oath or Affirmation of the Act permit administering an oath using a video conference via an internet based digital platform.
The commissioning of oaths is regulated, under South African law, in terms of the Justice of the Peace and Commissioners of Oaths Act, 1963. In this regard, a commissioner of oaths is required to:
- Verify the identity of the individual making the sworn statement;
- Ensure that the documents annexed to the affidavit are true copies of the documents; and
- Ensure that the individual making the sworn statement declares that they understand and know the contents of the affidavit.
In terms of the Regulations mentioned above, the declaration must be made in the presence of the commissioner of oaths, however, the restrictions imposed under the COVID-19 lockdown hampered the commissioning of documents in the presence of a commissioner of oaths, i.e., in person.
In the matter of Firstrand Bank supra, Firstrand Bank issued summons to Briedenhann for payment of a loan, together with interest accrued on the loan. Briedenhann failed to file a notice to defend the action and Firstrand Bank applied for a default judgment.
The judge of the High Court became aware of the fact that the affidavit that had been filed had been signed using an electronic signature, and had further been commissioned by means of digital video conferencing.
The court considered the meaning of ‘presence’, in the New Shorter Oxford Dictionary which 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; and the place or space around or in front of a person.”
Within the context of the Regulations, the court held that the expression ‘in the presence of’ requires that a deponent to an affidavit takes the oath and signs the affidavit in physical proximity to the commissioner of oaths, and does not provide for the ‘virtual presence’ of a commissioner.
It was argued that, although ‘presence’ is afforded its ordinary meaning, presence may be achieved by sight and sound. Therefore, a live video stream, during which both parties are able to see and hear each other, are able to observe each other’s actions, and to identify one another, could achieve all the purposes that physical proximity achieves.
Reference was made to the Electronic Communications and Transactions Act, 2002 (“ECTA”), which states that:
“where a law requires a signature, statement or document to be notarised, acknowledge, verified or made under oath, that requirement is met if the advanced electronic signature of the person authorised to perform those acts is attached to, incorporated in or logically associated with the electronic signature or data message.”
Firstrand advised the court that it had, in cooperation with LexisNexis (a global legal publishing company), set up a LexisSign digital platform for the commissioning of affidavits, and which is unalterable and secure.
According to Firstrand Bank, the ‘virtual’ presence achieved by LexisSign falls within the ambit of the meaning ‘presence’, also taking into account that the affidavit was deposed thereto during the time of the COVID-19 lockdown, and for obvious reasons, the deponent was not able to comply with the regulations.
The court referred to the matter of S v Munn 1973 (3) SA 734 (N) where it was held that where an affidavit has not been properly commissioned, it may still be valid provided that “there has been substantial compliance with the formalities in such a way as to give effect to the purpose of the legislator…”.
Further reference was made to the matter of R v Sopete 1950 (3) SA 769 E that held that the nature of the regulations was directory, and it was pointed out that, despite the regulations being directory of nature, it does not afford deponents the chance to deviate from the regulations, but rather gives the courts a discretionary role in determining whether there as been substantial compliance with the regulations, which is an issue to be determined on the merits of each case.
In the Firstrand Bank matter, and in determining substantial compliance with the regulations, the court took into account the following:
- The motive of Firstrand Bank for using the virtual platform.
- The fact that Firstrand Bank had acted in good faith.
Although the court held the view that a person should not elect to follow a different mode of commissioning documentation to that contained in the regulations, in exercising its discretion whether to admit the affidavits, the court held that the commissioning of the affidavit via the digital video conferencing platform, and using LexisSign complied, in substance, with the purpose of the regulations, and same was accepted by the court, based on:
- The decision to sign and commission the affidavit virtually was done in the context of the COVID-19 pandemic.
- The court found very significant advantages of using this digital platform.
- The LexisSign system offered security, together with various other advantages, which were explained in detail.
- The many inherent risks associated with fraudulent document confirmation in the manner envisaged in the regulations may be overcome by use of technology, such as the technology that was used in this matter.
The court accordingly ordered that the affidavits filed by Firstrand Bank, in support of the claim for judgment by default, be admitted on the basis that the affidavits substantially complied with the provisions of the regulations.
As stated above, it seems that digital video conferencing technology is here to stay, however, businesses are cautioned that it is advisable to obtain legal advice before making use of any digital technologies, especially during litigation, in order to ensure compliance with legislation.
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