Rethinking Oath Certification: Introducing Electronic Commissioning

Introduction

The Department of Justice and Constitutional Development has published draft Regulations under the Justices of the Peace and Commissioners of Oaths Act, 1963, inviting public comments until 31 August 2026. We have previously written extensively on electronic commissioning and considered various cases dealing with this mechanism. We therefore welcome the legislative modernisation of the commissioning of affidavits.

The draft Regulations are intended to repeal and replace the current Regulations Governing the Administering of an Oath or Affirmation, 1972. A key proposed amendment is Regulation 5, which introduces formal provision for the electronic commissioning of affidavits. If implemented, this development may significantly change how oaths and affirmations are administered in South Africa.

Traditionally, Regulation 4 required a deponent to sign a declaration in the physical presence of a commissioner. Where the deponent could not write, a mark had to be made before the commissioner. This physical co-presence has long been the cornerstone of oath administration. Regulation 5 now introduces a structured exception, allowing commissioning to take place remotely.

Regulation 5: The electronic commissioning framework.

Regulation 5(1) provides that, where a document requiring an oath or affirmation is submitted electronically, whether through an online portal or another legitimate electronic platform, the commissioner may administer the oath or affirmation through audio-visual communication with the deponent. This is a notable shift from the traditional approach, which requires the commissioner and deponent to be physically present in the same place.

Regulation 5(2)(a) deals with the practical situation where the document has already been signed before the oath or affirmation is administered. In those circumstances, the commissioner must be satisfied that the deponent is the person who signed the document. Once the commissioner is satisfied, the oath or affirmation may be administered. This makes it possible for documents to be prepared and signed in advance, and then commissioned remotely.

Regulation 5(2)(b) further provides that a deponent’s mark, typed name or surname appearing in the space provided for the deponent’s signature must be regarded and treated as the deponent’s signature. This is an important relaxation of the traditional signature requirements and supports the practical use of electronic commissioning processes.

Legal validity of remote commissioning

Regulation 5(3) is particularly important from a litigation perspective. It provides that, for the purposes of the regulation, an oath or affirmation administered by a commissioner while the deponent is not physically present is valid in all respects, as though it had been administered in the commissioner’s physical presence. This express validation appears intended to minimise challenges to the legal effect of affidavits commissioned remotely.

The expanded definition of "sign"

Regulation 5 is supported by the expanded definition of “sign” in Regulation 1. The definition now includes an electronic signature made up of the initials or name of the person signing, in any font, style or size intended to serve as a signature. It also includes an advanced electronic signature as contemplated in the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002). This broader definition makes the proposed electronic commissioning framework both practical and workable.

Implications for legal practice
The introduction of Regulation 5 has several practical implications for legal practice:

1. Court documents can be commissioned without the delays of arranging physical meetings.
2. Deponents in remote areas, or those unable to travel due to illness or frailty, will be able to depose to affidavits without having to appear before a commissioner in person.
3. Commissioners, however, retain the obligation to verify identity before administering the oath, ensuring that safeguards remain intact.
4. Regulation 5(3) expressly gives remotely commissioned affidavits the same legal status as affidavits commissioned in person, which should assist in limiting challenges to their admissibility.

Regulation 5 represents a considered attempt to modernise the commissioning of affidavits in South Africa while maintaining the essential safeguards of the oath-taking process. Audio-visual commissioning allows commissioners to observe the deponent, confirm understanding of the declaration, and verify identity, digitally rather than physically. If the Regulations are promulgated in their current form, practitioners will need to adopt secure audio-visual commissioning procedures that comply with the regulation and protect the integrity of the process.

Public comments on the draft Regulations may be submitted to Mr M Mokulubete at MMokulubete@justice.gov.za by 31 August 2026.

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