Electronic signatures and the virtual commissioning of affidavits

Last year, the electronic signing of documents once again came under the spotlight in the case of Firstrand Bank Limited v Jacques Louis Briedenhann. Interestingly, this decision was also handed down by the Eastern Cape Division of the High Court, which appears to be making groundbreaking decisions in this regard.

The Firstrand case dealt specifically with the signing and commissioning of virtual affidavits i.e. where a defendant signs in the ‘virtual presence’ of a Commissioner of Oaths. This practice is not currently permitted. The Court considered the Electronic Communications and Transactions Act (ECTA) and the Justices of the Peace and Commissioners of Oaths Act (COA) to be relevant legislation. It also went on to describe the practice introduced by Lexis Sign to administer electronic signatures – this would entail an electronic meeting as well as the encryption of all actions being taken. After considering both acts as well as the Lexis Sign practice, the court decided to give a narrow interpretation to the term ‘in the presence of’ as required by the COA, and found it to be limited to actual physical presence. The decision related to affidavits deposed for the purpose of litigation and thus for use in court proceedings.

The courts currently favour the rule of ‘substantial compliance’ when it comes to affidavits, only when the failure to comply relates to form. The (virtual) affidavits in the Firstrand case were however accepted as it was not, according to the Court, in the interest of justice to insist on signed ones ‘in the presence of’.  

With regard to the above, and in considering the signing of affidavits in the conveyancing environment, a few aspects can be highlighted:

• Why do we make affidavits and attend to the administration of oaths in conveyancing? Apart from the requirements of the Deeds Registries and Sectional Titles Acts, where did this practice originate?
• One of the most important documents in the transfer process, the instruction to register transfer, is not signed under oath. And yet, in this document, the seller provides their banking details and personal information, the security and accuracy of which is of pivotal importance. Furthermore, this document is more than often the source of potential fraud, with signatures being the most contentious.
• The COA gives the option to refuse to take an oath – no one can be forced to make an affidavit because they must swear to it. With freedom of religion being entrenched in our Constitution, the relevance of affidavits invites even greater consideration.
• Apart from the applications under oath, as prescribed by the relevant deeds legislation, no affidavits taken during the transfer process are submitted to the Deeds Office.
• When signing affidavits before a Commissioner, in litigation as well as conveyancing, the (not so popular) question must be asked: does the physical oath – i.e. the person who is signing being required to raise their right hand and repeating the oath – actually take place? The implication of this not happening may make the document ‘less legal’ than if a declaration was done instead. This begs the further question of what the legal implications are if the oath is not being administered properly.
• The COA further allows for the exception that conveyancers may administer their own affidavits, thereby elevating functionality and practicality over formality and conscientious considerations.

It is clear from the above that, in the new age of the electronic signature, it is time for the status quo to be considered and some innovative thought given to the situation.

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Written by Wessel de Kock

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