The applicant has been paying maintenance for the minor child but recently came across Whatsapp messages which indicated that he was not the father. He then procured two DNA tests which confirmed that he is not the father. Since he is currently working in Pakistan, his legal representative transmitted an unsigned version of the founding affidavit to him through e-mail. Later, the applicant, the commissioner of oaths, and the applicant’s legal representative were on a video conferencing call via the Zoom platform. The commissioning of the document was conducted over the Zoom video call. See paras [11]-[15] which detail the procedure used.
If a witness can take an oath and testify through a close-circuit television or audiovisual link as envisaged in section 37C of the Superior Courts Act 10 of 2013 and section 158 of the Criminal Procedure Act 51 of 1977, the same principle applies with equal force to a deponent who takes an oath when an affidavit is commissioned through the audiovisual link. There is no difference between taking an oath through a virtual platform for testifying and taking an oath when an affidavit is commissioned using an audiovisual link. The reality is that when the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 was passed over 60 years ago, internet and video conferencing were not envisaged. As modernisation unfolds, it is important for the courts to open themselves to the modern trend of technology.
The virtual e-signing of affidavits could serve as an easier, faster and more cost-effective measure in civil litigation. The modernisation of the civil litigation process will provide several advantages, including reduced costs, prevention of unreasonable delays, and a quicker resolution of cases. Evidently, the ability to sign and commission affidavits through video conferencing will significantly save time, reduce travel expenses, and expedite the finalisation of cases. In the circumstances, it is inherently critical that the Justices of the Peace and Commissioners of Oaths Act and the relevant Regulations should be amended to bring them in line with modernisation by allowing for electronic signing and commissioning of affidavits. In this case, there was substantial compliance with the Justices of the Peace and Commissioners of Oaths Act and the Regulations. The evidence placed before this court clearly establishes that the purposes of Regulation 3(1) have been complied with.
VJS v SH (19578/2024) [2024] ZAWCHC 333 (22 October 2024)
Notwithstanding the value of this judgement for a more digitally responsive legal sector the challenge now is to interrogate the different signing and meeting technologies to identify those offering best fit for the existing formalised and regulated processes. These technologies would further need to support compliance requirements such as FICA and POPIA in highly secure environments. The Videosign platform (http://www.videosign.co.uk) linked to Advanced Electronic Signing would be an example of such a product. For the undaunted these are indeed exciting times…
Good point Neil, formalise the process and make sure it is secure and recorded.