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Commission affidavits remotely in South Africa is a phrase people search when a matter is urgent and travel is difficult. Courts have acknowledged that technology is widely used, but the current regulations still require a deponent to sign “in the presence of” the commissioner of oaths.
The practical result is that remote commissioning is not something to treat as automatically valid, even if the process felt formal.
In LexisNexis South Africa (Pty) Ltd v The Minister of Justice and Constitutional Development (1018/2024) ZASCA 181, decided on 1 December 2025, the Supreme Court of Appeal dealt with a request for broad declaratory relief that would effectively treat “in the presence of” in Regulation 3 as including audio-visual platforms.
The court dismissed the appeal. The decision turned on the requirements for declaratory relief and on separation of powers.
The court held that it is not for the judiciary to create a new general system for administering oaths under Regulation 3 in the abstract, and that any general reform must be done through the regulatory power given to the Minister under the Act.
The court also emphasised that any alternative method would have to give a court the same assurance as an oath administered in the presence of a commissioner of oaths.
LexisNexis therefore did not decide whether a particular remotely commissioned affidavit in a live dispute should be admitted. It confirmed that physical presence remains the default position under the current rules, and it left “admission despite non-compliance” to be decided case by case in real litigation.
In Africas Best Foods (Pty) Ltd v ED Food S.R.L (A2024/061772) [2025] ZAGPJHC 1008; [2025] 4 All SA 589 (GJ) (29 September 2025), the issue was raised directly in a real dispute.
The objection was that affidavits were virtually commissioned while the deponents were outside South Africa, and therefore were not signed in the physical presence of the commissioner as required by Regulation 3(1).
The court accepted that Regulation 3(1) requires physical presence and that virtual commissioning is not authorised as a general method under the existing regulatory framework.
The court also confirmed, however, that non-compliance does not automatically invalidate an affidavit in every case. It held that a court is not precluded from receiving affidavits where there was substantial compliance and it is in the interests of justice to do so.
Firstrand Bank Ltd v Briedenhann [2022] ZAECQBHC 6; 2022 (5) SA 215 (ECGq) is widely cited because it dealt directly with “virtual presence” and with the court’s discretion to admit affidavits where formalities were challenged.
It is also the judgment the Supreme Court of Appeal referred to in LexisNexis as part of the background on how Regulation 3 has been interpreted in the High Courts.
The first is that “in the presence of” has been treated as physical presence. The second is that, where the purpose of the regulations has been achieved and the interests of justice favour admission, a court may still receive an affidavit despite non-compliance.
The combined message from these cases is practical but important.
Physical presence remains the safest route. Remote commissioning is not a generally authorised method under Regulation 3.
Even so, if a remotely commissioned affidavit is already in play, the real question in litigation is often whether there was substantial compliance, whether there is prejudice, and whether admitting the affidavit serves the interests of justice.
The current regulations still require physical presence for signing “in the presence of” a commissioner of oaths, and LexisNexis confirms that this cannot be changed by broad judicial reinterpretation.
A court may still accept an affidavit in a real case despite non-compliance where there was substantial compliance and it is in the interests of justice, but that is not something to rely on as a standard process.
No. LexisNexis was about broad declaratory relief and not about the admissibility of a particular affidavit in a live dispute.
Africa’s Best Foods confirms that a court may exercise a discretion to receive affidavits where there is substantial compliance and it is in the interests of justice, even if Regulation 3(1) was not strictly complied with.
In practice, the key questions tend to be whether identity and oath integrity are reliably established and whether the other side can show real prejudice.
The safest route is usually to follow the rules for affidavits sworn outside South Africa before authorised foreign office holders, with proper authentication where required.
An attorney can guide you on what is needed in your country so the affidavit is less likely to be challenged later.
Start by getting an attorney to assess how central the affidavit is, whether it is likely to be challenged, and whether a replacement affidavit should be commissioned properly.
If it cannot be replaced, the evidence plan should focus on substantial compliance and why admission would serve the interests of justice on your facts.
Commissioners of oaths are authorised under the Justices of the Peace and Commissioners of Oaths Act and the regulations made under it. Attorneys are ex officio commissioners of oaths, but the key practical point remains that the deponent should sign in the physical presence of the commissioner under Regulation 3(1).
If you need an affidavit under time pressure and you want it to stand up in court, book a consultation with our attorneys so the affidavit and evidence plan can be fixed early.
Written by Martin Vermaak, Director, Martin Vermaak Attorneys Inc., Divorce and Family Attorney. 10 March 2026
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