Technological innovations continue to play a critical role in how business is conducted, hence the notable surge in the integration of technology into business practices, including the execution of contracts through electronic means.

In 2023, the Canadian ruling on the validity of a ‘thumbs-up’ emoji as a legally recognised signature, which raised significant legal questions regarding the definition of a valid signature; brought into focus the common law principles of contract in South Africa and other jurisdictions.

Nayna Cara, legal director at Pinsent Masons in Johannesburg, signals to a similar case that has unfolded in South Africa, further pushing the boundaries of how legal proceedings are perceived in the digital age:

The case of the virtual affidavit

ED Food S.R.L. (”ED Food”) found itself in a legal tussle with Africa’s Best (Pty) Ltd (”Africa’s Best”) regarding a point “in limine” or a point raised preliminarily during the proceedings by Africa’s Best.

The crux of the matter revolved around the validity of affidavits submitted by ED Food, which were commissioned via video conference call. The deponents to the affidavits were in Italy, while the Commissioner of Oaths was in the Republic of South Africa.

The question that arose was whether the commissioning of an affidavit virtually would be valid. Africa’s Best argued that affidavits commissioned virtually are not in compliance with the requirement of being in the “presence” of the Commissioner of Oaths.

The Legal Perspective

The court referred to sections 7 and 8 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (‘The Act’), which provide the powers of Commissioners of oaths and the powers of oaths outside the Republic of South Africa, respectively.

According to Regulation 3(1) of the regulations governing the administering of an oath or affirmation, ”the deponent shall sign the declaration in the presence of the Commissioner of Oaths”. Africa’s Best argued that affidavits commissioned virtually are not in compliance with this requirement.

However, the court disagreed, stating that the Commissioner, Mr Kemp, is a duly admitted Attorney of the High Court of South Africa and such is a Commissioner of oaths appointed by the Supreme Court of South Africa in terms of section 8(1)(b) of the Act and is entitled to administer an oath outside South Africa.

If you were to ask Generation Z or even young millennials and the emerging Generation Alpha about their interpretation of ‘presence’, you might be surprised. For a large portion of the world, ‘presence’ transcends physical boundaries and delves into the digital realm. A vibrant group chat or a social media discussion can hold as much significance as a face-to-face conversation.

This shift in perception necessitates an evolution in our legal systems. We must start to envision laws that acknowledge a virtual interaction as a legitimate agreement or a text message as a binding commitment.

The Verdict

With regards to Mr Kemp’s ability and powers to commission an oath outside of South Africa, the court referred to a Government Notice published in 1980, wherein Alwyn Louis Schlebusch (then Minister of Justice) conferred the powers of a Commissioner of Oaths outside the Republic on any person who exercises in a state to which independence has been granted by law a legal professional equivalent to that of an attorney, notary or conveyancer in the Republic.

The court also referred to the case of Knuttel N.O. v Bhana and Others, where the deponent was suffering from Covid-19 during the time of the pandemic and as such, the court allowed the administering of the oath via video conference.

In conclusion, the court held that courts must be open to the modern trend of technology, however, this does not mean that court should be accepting anything that is not compliant with Acts and Regulations. It is important that courts and potential litigious parties understand the requirement that there must still be substantial compliance with the relevant legislation.

Key takeouts

In the end, the respondent lost the actual case, which revolved around the payment of a debt underscored by a verbal agreement. However, the applicant was ordered to pay the costs of the point raised regarding the affidavits not complying.

Cara adds that this case serves as a reminder of the evolving nature of legal proceedings in the digital age. Just as a thumbs-up emoji can be considered a valid signature in certain contexts, so too can a virtual affidavit be deemed valid, provided it complies with the relevant Acts and Regulations.

“As we continue to navigate the post-Covid business world, it’s clear that the integration of technology into legal proceedings is not only inevitable but also necessary for the efficient administration of justice,” she concludes. “This case serves as a reminder that while the digital age brings new possibilities, it also brings new challenges that must be navigated with care.”