LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services (2023-010096) [2024] ZAGPPHC 446; 2025 (2) SACR 36 (GP) (29 April 2024)

LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services (2023-010096) [2024] ZAGPPHC 446; 2025 (2) SACR 36 (GP) (29 April 2024)

The court held that the phrase 'in the presence of' in Regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation must be interpreted according to its ordinary grammatical meaning, which requires physical proximity between the deponent and the commissioner of oaths. The applicant's argument that the objectives of the Act and Regulations can be achieved by virtual means was found to be insufficient to override the clear wording of the Regulation. The court distinguished previous cases where affidavits commissioned virtually were admitted on the basis of substantial compliance, noting that those cases did not seek a declaratory order to broaden the interpretation...

Citation
[2024] ZAGPPHC 446
Parties
Applicant: LexisNexis South Africa (Pty) Ltd; Respondent: Minister of Justice and Correctional Services
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 April 2024
Case Number
2023-010096
Procedural Posture
Review Application / Unopposed Motion Court; Application for Declaratory Relief
Outcome
Application dismissed.
Judges
Swanepoel
Legal Topics
Commissioner of Oaths, Remote Commissioning, Interpretation of Statutes, Substantial Compliance, Electronic Signatures
Civil Procedure Commissioner of Oaths Remote Commissioning Interpretation of Statutes Substantial Compliance Electronic Signatures

Case Brief

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Parties

LexisNexis South Africa (Pty) Ltd

Applicant

Minister of Justice and Correctional Services

Respondent

Procedural Posture

Review Application / Unopposed Motion Court; Application for Declaratory Relief

Legal Issues

  1. 1 Whether the phrase 'in the presence of' in Regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation includes administration by live electronic communication.
  2. 2 Whether Regulation 3 requires the use of an advanced electronic signature as contemplated by section 13 of the Electronic Communications and Transactions Act 25 of 2002.
  3. 3 Whether the court should grant a declaratory order broadening the interpretation of 'presence' to include virtual means.

Ratio Decidendi

The court held that the phrase 'in the presence of' in Regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation must be interpreted according to its ordinary grammatical meaning, which requires physical proximity between the deponent and the commissioner of oaths. The applicant's argument that the objectives of the Act and Regulations can be achieved by virtual means was found to be insufficient to override the clear wording of the Regulation. The court distinguished previous cases where affidavits commissioned virtually were admitted on the basis of substantial compliance, noting that those cases did not seek a declaratory order to broaden the interpretation...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.