The Department of Justice and Constitutional Development has published for public comment draft regulations that would formally allow affidavits and other documents to be commissioned remotely through audio-visual communication, modernising a regulatory framework that has remained largely unchanged since 1972.
The publication follows the Department’s confirmation to Moonstone last month that Justice Minister Mmamaloko Kubayi had approved draft regulations permitting electronic commissioning through audio-visual communication.
Read: Minister approves draft regulations for virtual affidavits
Published in Government Gazette No. 55075 on 31 July, the draft Regulations Governing the Administering of an Oath or Affirmation would repeal the existing regulations and, for the first time, expressly recognise electronic commissioning.
Neil Summers, the South African lead for Videosign, the world’s first combined meeting and signing platform, said the draft regulations are “a huge step in the right direction, potentially confirming the right to use secure technology solutions to commission affidavits, and bringing the convenience and efficiency of this process to anyone engaging in legal proceedings”.
Based in the United Kingdom, Videosign enables organisations to meet, verify identity, create, sign, and witness documents remotely, alongside security measures such as identity verification and video evidence recording.
“While the use of Advanced Electronic Signatures (AES) is already legally recognised, the specific practice of virtual commissioning has not yet been sanctioned by legislation,” Summers said.
“However, on two recent occasions, affidavits executed using Videosign were presented to the High Court, and they weren’t in any way queried or denied. It indicates that the courts themselves recognise the validity of digitally signed documents and are prepared to exercise their discretion to accept them in the interest of justice.”
The two cases involved urgent applications to the High Court in Johannesburg.
The attorney, Jennifer Scholtz, said: “In both cases the clients were overseas – one in Australia and one in Vietnam – and we were able to use Videosign to commission affidavits remotely. The alternative would have been for both clients to visit a South African embassy or high commission and spend significant sums of money to get affidavits executed in person.
“The ability to sign remotely not only reduced the costs for the clients but also saved two weeks or more of delays in each case. That time saving helped to ensure that our clients’ cases were heard quickly and that they got efficient access to justice.”
Scholtz said electronic signatures would improve the efficiency of legal processes.
“This regulation change will mean anyone involved in legal processes will have the option to sit in their comfortable chair at home to depose to an affidavit, rather than having to travel to a lawyer’s office or police station,” she said.
Videosign’s chief executive Steven Tallant said: “These recent examples of Videosign being used to execute affidavits show how remote commissioning can improve the efficiency of legal processes and remove barriers to accessing justice through South Africa’s courts.
“It’s very positive that South Africa is preparing to amend its regulations to reflect technological improvements and the needs of court users.”
Electronic commissioning recognised
Although the draft regulations largely preserve the existing framework governing the administration of oaths and affirmations, it introduces several important changes to accommodate electronic commissioning.
Most notably, the draft regulations redefine an affidavit as a written statement made voluntarily under oath or affirmation before a commissioner, “whether in the physical presence of each other or not”.
They also broaden the definition of “sign” to include electronic signatures, as well as AES recognised under the Electronic Communications and Transactions Act.
The principal innovation is a new regulation dealing specifically with electronic commissioning. It provides that where a document requiring an oath or affirmation is submitted electronically, through an online portal or another legitimate electronic platform, a commissioner may administer the oath or affirmation by means of audio-visual communication with the deponent.
Where a document has already been signed before the oath or affirmation is administered, the commissioner must first satisfy himself or herself that the deponent is the person who signed the document before proceeding.
The draft regulations provide that where the deponent is not physically present before the commissioner, the administering of the oath or affirmation “is in all respects valid as if it was administered in the physical presence of the commissioner”.
The draft regulations also provide that a mark, typed name, or typed surname in the space provided for the deponent’s signature must be treated as the deponent’s signature for purposes of the electronic commissioning provision.
Taken together, these provisions make clear that affidavits commissioned remotely in accordance with the regulations would have the same legal validity as those commissioned in the physical presence of a commissioner.
Apart from the provisions dealing with electronic commissioning, the draft retains much of the existing regulatory framework. Commissioners would still be required to certify that the deponent acknowledged knowing and understanding the contents of the declaration and record the manner, place, and date on which it was taken.
Deadline to comment
The Department has invited interested parties to comment on the draft regulations by 31 August 2026. Comments must be submitted to the Department of Justice and Constitutional Development, for the attention of Mr M Mokulubete at MMokulubete@justice.gov.za.
Note: The Moonstone Group is a significant investor in Videosign.
