LIVING IN A VIRTUAL WORLD:
LIVING IN A VIRTUAL WORLD: COMMISSIONING
The authority to commission documents arises from the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963, (“the Act”).
When commissioning documents, a commissioner administers an oath to the signatory, as published in the Government Gazette, which requires the following questions to be asked and answered:
does the signatory understand the declaration;
does the signatory have an objection to taking the oath; and
does the signatory consider the oath to be binding on their conscience.
Post the oath being taken, the signatory affixes their signature to the document in the presence of the Commissioner who thereafter applies their signature stamp to the same document.
South African Courts have advanced the following criteria for documents to be commissioned virtually:
The deponent is to have a hard copy of the document and their ID available during the virtual commissioning;
The commissioner must administer the oath, confirm the signatory’s identity and watch the deponent sign whilst on the virtual platform; and
The deponent thereafter scans the signed document to the commissioner, who prints same to confirm its authenticity, and stamps and signs the document.
Section 13 of ECTA states, inter alia, that where a signature is required, and the type of signature is not specified, same is only valid if an advanced electronic signature is used.
Further, a signature should not be rendered without force and effect due to its type, ie. virtual and not actual.
Whilst virtual commissioning makes life easier and safer, for both the commissioner and signatory, one would need to be wary of the increased risk of fraud and forgery.
Strict adherence to the guidelines set should be the norm to ensure proper commissioning of documents and to avoid risks as much as possible.
Parties should carefully consider the use of an electronic signature or an actual signature when deposing to documents. We would advise deponents to “share” their screens with a commissioner when signing electronically.
Please be advised that electronic/virtual signatures are not acceptable in every transaction and parties should contact a legal practitioner for case specific advice and assistance.
1 GN R1258 GG3619/21-7-1972
2 Act 25 of 2002