JHB High Court: Virtual commissioning in a digital era

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JHB High Court: Virtual commissioning in a digital era

• 17 November 2025
• Law
• South African Accounting Academy

Summary:

The JHB High Court recently delivered a significant case pertaining to the legal uncertainty surrounding virtual commissioning.

 

Article:

Authenticity and the deponents’ identities were not in dispute.

The court held that:

• Virtual commissioning is not currently sanctioned under the Act and Regulations.
• The Commissioners exceeded their authority by administering oaths to deponents outside the RSA.
• However, the court a quo correctly exercised its discretion to admit the affidavits, finding substantial compliance and acting in the interests of justice.

The SA legislative framework does not currently permit virtual commissioning, as it violates the requirement for a deponent to sign in the physical presence of a commissioner of oaths. However, the court affirmed that it has the discretion to admit virtually commissioned affidavits – if it is in the interests of justice and where there is substantial compliance with other regulations as a factor. 

The court made it clear that the current law expects affidavits to be signed in the physical presence of a commissioner of oaths. Regulation 3(1) was written in a time before digital technology and assumes that the deponent and commissioner are in the same place. Because of this, virtual commissioning is not officially allowed under the existing rules. For it to become fully legal, Parliament would need to change the law.

For people outside South Africa, the correct way to swear an affidavit is through section 8 of the Act. This means using a foreign official, like a notary, who is authorised by Gazette notice, and then making sure the affidavit is properly authenticated. Trying to use a South African commissioner over video for someone abroad does not fit into section 8’s requirements.

Especially for lawyers, the safest option is to follow section 8 when dealing with foreign deponents. If video commissioning is unavoidable, you need to record everything carefully identity checks, timestamps, screenshots and file a confirmatory affidavit from the commissioner. For important witnesses, it’s better to get a court-appointed commission under the rules to avoid later disputes.

The ruling highlighted the need for legislative reform to align the law with modern technological realities and ensure clarity and consistency in legal proceedings involving remote parties. Until that happens, practitioners must either stick to the existing section 8 process or provide strong proof that any deviation was necessary and did not compromise the integrity of the evidence.

Click here to download the case file:  

https://www.saflii.org/za/cases/ZAGPJHC/2025/1008.rtf 

Relevance to Auditors, Independent Reviewers & Accountants:

• Practitioners who are also Commissioners of Oaths, must comply with the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and its accompanying Regulations.
• If your clients are performing Commissioning services, they must comply with this legilsation, and which you must assess compliance with.  If they don’t comply with the relevant laws and regulations, you have certain reporting obligations in terms of NOCLAR (NOn-Compliance with Laws And Regulations) – this could include reporting to management, qualifying your audit opinion, reporting a Reportable Irregularity, etc.
• You should also be aware of court rulings that significantly affect the conduct of the services that you provide.

Relevance to Your clients:

• Commissioners of Oaths must comply with the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and its accompanying Regulations.
• Your clients should also be aware of court rulings that significantly affect the conduct of the services that they provide.

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