A commentary on LexisNexis South Africa (Pty) Ltd v Minister of Justice and Constitutional Development 2026 (3) SA 71 (SCA)
We open bank accounts on our phones, conclude binding contracts with a typed name, and conduct entire trials over video. Against that backdrop, the requirement that a deponent physically stand in front of a commissioner of oaths to swear an affidavit can feel like a relic. The Supreme Court of Appeal has now confirmed, however, that the requirement is not a formality a service provider can engineer its way around. If virtual commissioning is to become lawful in South Africa, the change must come from the Minister’s pen, not from a clever platform or a sympathetic reading of the regulations.
What was in issue
LexisNexis built an online platform designed to allow affidavits to be commissioned over a live video link. To clear the way for it, the company sought a declarator from the High Court to the effect that the words “in the presence of” in the governing regulation are wide enough to cover a virtual presence. The provision at the centre of the dispute is Regulation 3(1) of the regulations made under the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, which requires a deponent to sign the declaration in the presence of the commissioner of oaths.
The High Court declined to read the words that way. On appeal, the SCA agreed with that outcome and dismissed the appeal.
Why the court would not stretch the words
The court’s central reason was constitutional in character rather than technical. The authority to make and amend these regulations belongs to the Minister of Justice under section 10(1)(b) of the Act. Reading “presence” to include a video connection would not be interpretation at all; it would be the judiciary rewriting the regulatory scheme and stepping into territory the legislature has reserved for the executive. The separation of powers does not permit a court to expand the regulations simply because doing so would be convenient or modern.
The court also explained what the in-person requirement is for. Personal attendance is the mechanism by which a court can be satisfied that the deponent genuinely understood the oath and accepted its obligations. That assurance is built into the physical encounter between deponent and commissioner. An ad hoc video call running on an unregulated platform, with no prescribed safeguards, cannot be relied upon to deliver the same assurance.
The narrow room for substantial compliance
This does not mean every deviation is fatal. South African courts have recognised a limited doctrine of substantial compliance, but it operates only where physical presence is truly impossible, not merely awkward or inconvenient. The reported exceptions bear that out. In Knuttel NO v Bhana [2022] 2 All SA 201 (GJ), the deponent was infected with COVID-19; in ED Foods SRL v Africa’s Best [2024] ZAGPJHC 311, the deponents were abroad in Italy. In each, the affidavit was accepted on the strength of those particular facts.
The boundary of that doctrine was put plainly in FirstRand Bank Ltd v Briedenhann 2022 (5) SA 215 (ECGq), where the court took “in the presence of” to mean physical presence and warned that a deponent is not free to pick a method of administering the oath other than the one the law prescribes. The exception is a safety valve for genuine impossibility; it is not an open invitation to substitute a preferred procedure.
The constitutional argument, and why it failed
LexisNexis also reached for section 39(2) of the Constitution, which obliges courts to advance the spirit, purport and objects of the Bill of Rights when they interpret legislation. The argument was that a rigid insistence on physical attendance can impede access to justice and so should yield to a more generous construction.
The court accepted that access to justice is a real concern, but held that section 39(2) is an interpretive aid, not a licence to override language that is clear. Where the words of a regulation admit of one meaning, the constitutional injunction cannot be used to manufacture a different one. The proper response to a policy shortfall in the regulations is to amend the regulations, a matter for the Minister.
The exposure most practitioners overlook
For anyone tempted to commission remotely anyway, the risks run well beyond an affidavit being struck out, serious as that is. If a court rejects a virtually commissioned affidavit in urgent proceedings, the litigant may have to begin the entire process again, a cost that swamps whatever convenience the video link offered.
The graver problem sits with the commissioner. The jurat, the commissioner’s certificate at the foot of the affidavit, typically records that the document was sworn before the commissioner at a named place, say Johannesburg. Where the deponent was in fact somewhere else, that certification is untrue, and the commissioner has placed a false statement before the court. Section 9 of the Act criminalises false statements of this kind, and its reach extends to a commissioner who knowingly certifies an oath that was not properly administered. An attorney or chartered accountant who commissions in this way, absent some compelling justification, is exposed not only to criminal liability but also to professional disciplinary steps, adverse costs orders and lasting reputational damage.
The same logic applies to certifying copies. A certification that a document is a true copy of the original represents that the commissioner has actually inspected the original. That representation cannot honestly be made on the basis of an image held up to a camera.
A workable way forward already exists
None of this is an argument against modernisation; it is an argument about who must do the modernising. Ontario offers a ready template. Its Regulation 431/20 permits remote commissioning, but only within a framework of mandatory safeguards: a continuous real-time audiovisual link, confirmation of the deponent’s identity, an adapted jurat that discloses the remote process and records where each party was located, sensible precautions to ensure the deponent understands what is being signed, and the keeping of a record of the process.
Crucially, an equivalent regime could be introduced in South Africa under the existing section 10(1)(b) power, without touching the primary legislation at all. The enabling structure is already in place. What is required is a decision by the Minister to use it.
The bottom line
The familiar complaint that the law trails behind everyday life has real force here. But the answer is not for courts to bend plain regulatory language, nor for commercial platforms to dress up non-compliance as innovation. The answer lies in a regulatory amendment that brings remote commissioning within a properly safeguarded framework. Until that amendment is made, commissioners of oaths must continue to perform their function as the law presently requires, in person, and with full appreciation of the public responsibility the office carries.
This commentary is provided for general information and does not constitute legal advice. For guidance on commissioning of oaths, affidavit practice or related litigation in South Africa or Lesotho, please contact Mayet & Associates Inc.
