Deposing to Affidavits: Legal Formalities and Best Practices

By Magdaleen Grundlingh, Attorney and Notary at Le Roux Vivier Attorneys (LVA)

Introduction

An affidavit is a written statement in which the deponent (person who deposes to or signs the affidavit) verifies that the statements made therein are true and correct. Depending on the circumstances, affidavits may contain annexures.

In essence, the signing of an affidavit in the presence of a commissioner of oaths constitutes the administering of an oath or affirmation and a commissioner of oaths may not charge a fee for attending to the administering of the oath or affirmation.^[1] Commissioners of oaths include police officers, attorneys, notaries, conveyancers, chartered accountants, magistrates, and clerks and registrars of courts.

Formalities Prescribed by the Regulations Governing the Administering of an Oath or Affirmation (“the Regulations”)

Prior to administering an oath or affirmation, the commissioner of oaths must ask the deponent the following questions:

a)   Do you know and understand the contents of the affidavit?;

b)   Do you have any objection to taking the prescribed oath?; and

c)   Do you consider the prescribed oath to be binding on your conscience?^[2]

If the deponent responds to all of the questions in the affirmative, an oath must be administered;^[3] however, if the deponent responds in the negative to either questions b) or c), an affirmation must be administered.^[4] The deponent must then sign the affidavit in the presence of the commissioner of oaths. If the deponent cannot write, they may make a mark, such as a cross or thumbprint, which the commissioner must witness.^[5]

Thereafter, the commissioner of oaths must certify that the deponent has acknowledged that they know and understand the contents of the affidavit. The commissioner does this by signing the certificate and recording their full name, title, and area of appointment. The commissioner must also note the manner (oath or affirmation), place, and date of administration.^[6]

Are the Formalities Prescribed by the Regulations Peremptory or Directory?

South African courts have held that the formalities in the Regulations are directory rather than peremptory.^[7] This means strict compliance is not always required, and courts have discretion to accept or reject an affidavit based on substantial compliance.^[8]

Our courts have even accepted affidavits, with annexures, where only the affidavit – and not the annexures – was initialled by the deponent and the commissioner of oaths.^[9] This is because the Regulations do not expressly make provision for initialling of annexures.^[10]

Conclusion

While the Regulations are directory, we recommend full compliance to avoid the risk of a court exercising its discretion to reject an affidavit for non-compliance. Commissioners and deponents should adhere to the prescribed questions, certification, and recording requirements. Additionally, we advise initialling all annexures by both the deponent and commissioner to eliminate any doubt about their inclusion as part of the affidavit. An affidavit must stand alone as sufficient evidence to support a case, ensuring clarity and legal robustness.

[1]      Regulation 6 of the Regulations Governing the Administering of an Oath or Affirmation (GNR.1258 of 21 July 1972.

[2]      Regulation 2(1) of the Regulations Governing the Administering of an Oath or Affirmation (GNR.1258 of 21 July 1972.

[3]      Regulation 2(2) of the Regulations Governing the Administering of an Oath or Affirmation (GNR.1258 of 21 July 1972.

[4]      Regulation 2(3) of the Regulations Governing the Administering of an Oath or Affirmation (GNR.1258 of 21 July 1972.

[5]      Regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation (GNR.1258 of 21 July 1972.

[6]      Regulation 4 of the Regulations Governing the Administering of an Oath or Affirmation (GNR.1258 of 21 July 1972.

[7]      S v Msibi 1974 (4) 821 (T).

[8]      S v Msibi 1974 (4) 821 (T).

[9]      Mailula and Another v Matsi Law Chambers Inc (Leave to Appeal) (46358/2021) [2023] ZAGPPHC 659 (10 August 2023).

[10]     Mailula and Another v Matsi Law Chambers Inc (Leave to Appeal) (46358/2021) [2023] ZAGPPHC 659 (10 August 2023).