Written by and Alisha Naik and Dean Scher, Candidate Attorneys; and Chantelle Gladwin-Wood, Partner
13 April 2021
This article is written off the back of a petition drafted by the authors hereof to the Minister of Justice and Constitutional Development (“the Minister”) to amend the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (“the Act”) to make express provision for electronic authentications, subject to the provisions of the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”).
The aim of the petition is to consolidate and amend the laws relating to the appointment, powers and duties of justices of the peace and commissioners of oaths, and notaries specifically, with regards to electronic signatures and/or signature methods, and to provide for matters incidental thereto, in light of recent technological developments necessitated by the COVID-19 Pandemic and the provisions of ECTA.
Since the outbreak of the COVID-19 pandemic (“the pandemic”), legal practitioners, particularly commissioners of oaths and notaries public, have been faced with the challenge of having to commission and/or authenticate documents electronically due to clients and/or practitioners not being at their ordinary places of work because they are working from home, or being prohibited from attending work or leaving their home because they are self-isolating and/or are quarantined.
Neither the Act nor ECTA expressly state what the position is in regard to electronic commissioning by notaries and commissioners operating in the Republic. Practitioners specifically also need clarity as to the lawfulness of practitioners located in or outside of the Republic of South Africa (“RSA”) signing documents and/or notarizing or commissioning documents for clients situated in or outside of the RSA is, when done electronically.
Gaps in the Law
The two pertinent concepts requiring regulation in this regard specifically relate to signatures made by deponents:
- ‘in the presence of’ a commissioner; and
- the actual signatures of the deponent and commissioner by physical or electronic means.
The Act provides that commissioners can only commission within their own jurisdiction. However, seeing that attorneys are commissioners of oath ex officio, and they are admitted to the High Court and are now permitted to practice in the whole of South Africa, in terms of the Legal Practice Act 28 of 2014, we are uncertain as to whether attorneys, who are commissioners ex officio, are permitted to commission documents only when they are physically within the geographical boundaries of the area or province or Court in which they were admitted or they practice, or whether they may commission documents within the boundaries of the whole of South Africa.
This impacts on the practical functioning of attorneys as commissioners all over RSA. Can an attorney who is admitted in the Johannesburg High Court sign documents only with the Johannesburg area, or also within the Pretoria area (the Pretoria area being governed by the Pretoria High Court and the two Courts having concurrent jurisdiction)? Can an attorney admitted in Johannesburg commission a document outside of his/her jurisdiction (perhaps, say, whilst she/he is in Cape Town for work, or even other, purposes)?
Moreover, we understand that notaries are not limited geographically in terms of where they can notarise documents within the borders of South Africa, but we were unable to find any law that indicates whether a notary can commission/notarize a document outside the borders of South Africa for use within the borders and whether or not this would be lawful. For example, could a notary who is travelling for work lawfully notarize a document with his/her clients, for use in RSA, according to RSA laws, whilst in London?
The use of electronic means to commission/notaries documents bring with it another level of complexity and more questions. When signatures are made by clients over camera via, for example, Zoom or Teams, where are the clients deemed to be situated in the world? The same question applies to where our law regards the commissioner or notary to be situated. It may be (based on the Act and the common law referred to above) that the place that the law deems the signatory to be at the time of the signing is dispositive of the matter.
- ‘In the presence of’
Section 7 of the Act states: “Any commissioner of oaths may, within the area for which he is a commissioner of oaths, administer an oath or affirmation to or take a solemn or attested declaration from any person…”
In interpreting existing legislation and definitions in this context, ‘in the presence of’ when commissioning an affidavit has been interpreted by our courts as meaning ‘within the sight of’ (including electronically) as well as to be synonymous with ‘physically present with one another’, which has been presented in such a manner so as to allow the parties to see one another.
Based on the above, the question arises, if a commissioner’s jurisdiction is Gauteng, may they validly commission for a client based in another province, or in another Court’s jurisdiction, or even outside of the RSA? Or conversely, if a commissioner practicing in the jurisdiction of the RSA is working remotely outside of RSA, may they validly commission for a client situated in the RSA? In essence, from where is the commissioner deemed to be taking the oath?
The question of where the commissioner is taking the oath, is, to our understanding, a lacuna (gap/loophole) in our law. We submit that, taking into account that legal practitioners, once admitted, are entitled to practice anywhere in the RSA, they ought to similarly be entitled to commission documents (and notarize them) anywhere within the borders of the RSA.
We submitted further (based on the move towards more technological means of facilitating signatures over Zoom or Teams, where the commissioner/notary is still able to watch the deponent sign and administer the oath in ‘live terms’, thereby meeting the ‘in the presence of’ requirement for the signature) that our law should provide for any commissioner/notary to be able to commission/notarise any document for any client regardless of where the notary or commissioner is located within RSA and regardless of where the deponent is situated within RSA.
Going further afield, if it is accepted that a commissioner of oaths/notary can administer the oath and watch a deponent sign a document electronically and sign same electronically, regardless of whether the notary/commissioner and/or client are situated, within the borders of RSA, it is submitted that there is no reason to limit the applicability of this method of signature verification to only where the parties are physically located within the borders of RSA. There is no reason in practice to prohibit a South African notary in London from physically or electronically notarising documents for a client in South Africa, or in Denmark, because the requirements of the oath and of verifying the signature can be conducted electronically.
- The actual signature of the deponent and commissioner
With regards to the second aspect, namely the actual signatures of the deponent and commissioner, ECTA specifically provides that affidavits and notarial documents may be signed electronically by the commissioner or notary using an Advanced Electronic Signature (“AES”). There is no requirement in law for the signature of the client or deponent to be an AES.
There are software systems in place that enable and further facilitate secure electronic authentication in that when documents are signed electronically, the system tracks the document(s) as they move securely between the parties, to ensure that the document cannot be intercepted and/or amended. The systems also have the capabilities to empower the commissioner to allow clients that wish to sign electronically one advanced electronic signature to sign the document, whereafter the commissioner then utilizes their electronic signature to commission said document. The commissioned document is then sent securely, though the same system, with the digital certificate, to the recipient.
However, not many people make use of AES’s. The provisions of ECTA are onerous and the additional hurdle of having to have an AES accredited by an authorised provider has significantly hampered the use of digitised signatures in the South African legal community (this is aside from the fact that AES often require annual subscriptions or charge per signature used, which many attorneys are unable to afford).
It is submitted that the level of authentication for commissioners of oaths needs to be addressed, because many of these are public servants and ordinary citizens volunteering their services to assist their fellow citizens, but who cannot afford to pay a few thousand rand a year to obtain an AES that would allow them to electronically commission documents. It might be that an industry accreditation could fill this role, perhaps via LexisNexis or another recognised platform.
Authenticating or commissioning, by virtue of the prevalence of the technology and the personal and unique nature of virtual interactions, would, in many cases, be a more cost-effective and efficient measure than physical authentication. It would also be more reliable than some of the traditionally prescribed methods. For example, virtual authentications and commissioning would allow for the participants to record the consultation, thereby creating an accurate evidentiary account of the consultation with the client – which may hold practitioners to a greater level of accountability, should the authentication be disputed in future.
It would be prudent for the commissioner to confirm to the Court, by means of an affidavit that data integrity of the virtual authentication was maintained, all of the steps taken, and to provide reasons for the Court to grant condonation, should such be required.
Transforming the Law
The functioning of the legal system as a whole has been gravely impacted by COVID, and whilst tremendous efforts have been made by all role players to mitigate the impact on service delivery by our justice system, inefficiencies and the sheer costs involved (of facilitating every public office in the justice system with the proper equipment/resources to return to “normal work”) are insurmountable.
Electronic commissioning would reduce both the time and cost involved, speed up service delivery and would, in turn, increase access to justice for the public at large.
The urgency of the above request is heightened by the grave and serious threat that is posed to the effective operation of the legal system as a result of the pandemic. In order to limit the spread of the virus, it has been government policy in South Africa to limit any and all unnecessary contact between people. Our government has adopted a strategy of isolation, which seeks to limit non-essential contact between people.
We accordingly requested that the Minister forthwith amend the legislation mentioned herein and/or legislation in relation thereto as they so see fit, to provide guidelines expressly indicating that electronic commissioning and authentication of documents is permissible, and, in doing so, to impose guidelines as to how such should be carried out.
In essence, the proposal contained therein would only require a minor amendment and/or insertion in the Act as it currently stands, subject to ECTA, in the same manner that electronic signatures are already subjected to and regulated by it. It may also require an amendment to ECTA in relation to where documents are regarded as being signed. We accordingly requested that the Minister consider the above and revert back to us. We remain committed to furthering access to justice for all in South Africa and it appears that, in these troubled times, with very little cost and effort, enormous strides can be made towards this goal, simply by making an amendment to the Act.
Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case by case basis and you should consult an attorney before taking any action contemplated herein.
Partner at Schindlers Attorneys
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Candidate Attorney at Schindlers Attorneys
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Candidate Attorney at Schindlers Attorneys
Phone +27 (0) 11 448 9679