Perils of not signing on the dotted line

WHILE the Covid-19 pandemic has paved the way for virtual proceedings, the issue of whether a court should allow affidavits deposed to virtually and signed by means of an electronic signature came under the spotlight in an Eastern Cape court.

As things stood before the outbreak of the pandemic, deponents of an affidavit, in terms of legal regulations, signed the documents manually before a commissioner of oaths or by way of affirmation before the commissioner. During lockdown and even after the easing of government’s Covid-19 regulations and restrictions, the practice of remote commissioning of affidavits has become prevalent and is still continuing.

Judge GG Goosen, sitting in the Gqeberha High Court, was confronted with an application by a bank against a client who fell in arrears with his mortgage payments.

The client did not oppose the application for him to pay the bank more than R900000.

The bank then turned to the court to obtain a default judgment. But the bank’s affidavit setting out the facts of the case was virtually signed, and the judge questioned whether he should exercise his discretion to admit the affidavit deposed to virtually.

The judge said the use of digital technologies and “remote” or “virtual” technologies had been thrust to the fore in recent years, especially as the pandemic led to the imposition of restrictions on ordinary social and economic activity.

Within the legal sector and in court and justice systems, globally, new rules and directives were issued to allow courts to continue to provide access to justice, notwithstanding the lockdown of social and commercial interaction.

Many embarked upon a process of having affidavits signed and commissioned electronically. In this matter the bank elected to employ a new technology platform to digitise its preparation of affidavits for use in legal recoveries.

The bank outlined the LexisSign system in this regard and told the court it was safe and effective.

The judge said it might be that many of the inherent risks associated with fraudulent document attestation in the ordinary manner and which the regulations sought to address would be overcome by use of technological innovation such as that employed in this case.

The judge, however, added that legislative action would be required to recognise and legitimise the use of technologies such as those proposed by the bank in court cases.

“It is to the legislature or to the minister of justice in this case that persuasion should be directed… It is, in my view, not open to a person to elect to follow a different mode of oath administration to that which is statutorily regulated.”

Judge Goosen added that the regulations stipulated that the declaration of an oath was to be signed in the presence of the commissioner and the court was not at liberty to change this.

Only the minister or the legislator could. He said in the interests of justice a court could on a case-to-case basis decide to accept electronically commissioned court papers, such as in the case before him.

The bank in this case was entitled to a judgment in its favour, he found.