Electronic signatures headache for court

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 oath or by way of affirmation before the commissioner.

During lockdown and even after the easing of government’s Covid19 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 payment.

The client did not oppose the application for him to pay the bank more than R900 000. 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 commissioner and the judge questioned whether he should exercise his discretion to admit the affidavit deposed to virtually.

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

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 that it was safe and effective. The judge remarked that it may be that many of the inherent risks associated with fraudulent document attestation in the ordinary manner and which the regulations seek to address will 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.

Judge Goosen added that the regulations stipulate 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.

However, he said that, 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.

He added that the bank, in this case, was entitled to a judgment in its favour.