LexisNexis South Africa (Pty) Ltd v Minister of Justice and Correctional Services [2024] ZAGPPHC 446
The applicant (LexisNexis) applied to court for an order:
- “That it be declared that the words “in the presence of” in Regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation, published under Government GN 1258 in GG 3619 dated 21 July 1972 are to be broadly interpreted and shall include the administration of an oath or affirmation by means of live electronic communication, consisting of simultaneous audio- and- visual components;
- That it be declared that Regulation 3 does not require the use of an advanced electronic signature as contemplated by section 13 of the Electronic Communications and Transactions Act 25 of 2002.”
The respondent (the minister) did not participate in the proceedings and three “law bodies” were invited by the court to participate as amici curiae, but they did not respond to this invitation.
Regulation 3 provides as follows:
“(1) The deponent shall sign the declaration in the presence of the commissioner of oaths.
(2) If the deponent cannot write he shall in the presence of the commissioner of oaths affix his mark at the foot of the declaration: Provided that if the commissioner of oaths has any doubt as to the deponent’ s inability to write, he shall require such inability to be certified at the foot of the declaration by some other trustworthy person.”
LexisNexis argued that a wide interpretation should be attached to the words “in the presence of” to also include a situation where the commissioner of oaths and the deponent to an affidavit are linked by an audio-visual electronic link through which the commissioner can observe the deponent signing the affidavit, ascertain that the deponent understands the contents of the declaration and administer the oath or affirmation as required by the mentioned regulations made under the Justices of the Peace and Commissioners of Oaths Act, 1963. LexisNexis also referred to two previous cases where affidavits that were done in this way were accepted by the high court.
The court (Swanepoel J) distinguished those two matters from this application in that the courts were not asked to apply a wide interpretation to Regulation 3, but were requested to accept the declarations in evidence despite the fact that there was not strict compliance with the provisions of the regulation. The court then continued by applying the proper approach to the interpretation of any document stated in Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) to the provisions of the regulation. The court held that the wording of the provision is the starting point, to be evaluated against the purpose and context of the regulations. Nothing pointed to the words “in the presence of” meaning anything other than the ordinary meaning of physical presence and no evidence that it can mean anything other than this was placed before the court. The court held, therefore, that a wide interpretation cannot be attached to the provisions and consequently dismissed the application.