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FLYNOTES: CIVIL PROCEDURE – Commissioner of oaths – Remote commissioning – Knuttel NO v Bhana decided amidst extra-ordinary circumstances of covid pandemic – In this case lack of financial resources and having a sick parent not extra ordinary or exceptional to attract rationale of Knuttel – Founding affidavit non-compliant with the Regulations Governing the Administering of Oaths and Affirmations.

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

 

CASE NO: 9938/2022

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

Date: 2023/07/28

 

In the matter between:
MADAURE JACQUELINE TINASHE	APPLICANT
and
UNIVERSITY OF LIMPOPO (TURFLOOP CAMPUS)	RESPONDENT

 

JUDGMENT

 

MONENE AJ

 

This Judgement was handed down electronically by circulation to the parties' legal representatives via their e-mail addresses and released to SAFLII. The date and time for hand-down are deemed to be 28 July 2023 @10:00.

 

[1]           This is an application wherein in the main the Applicant, a PHD student under the respondent's auspices seeks to review and set aside the failure of the respondent to release her thesis results.

 

[2]           As an alternative to the release of the results, the applicant prays, in case the thesis has not yet been graded, for an order directing the respondent to ensure that the thesis is marked and thereafter the results released, all within thirty days of the order sought being granted.

 

[3]           Acknowledging that she has not exhausted available internal remedies to prosecute the relief she seeks, the applicant prays further that she be exempted from availing herself to those internal remedies such as internal appeal within the organogram of the respondent.

 

[4]          The Application is opposed by the respondent in the main on the basis that the applicant has not fully traversed the complete route qualifying her to receive PHD results, it being the respondent's version that there are aspects of scholarly dishonesty attendant to her thesis which still need to be determined.

 

[5]          Prior to dealing with the merits of the application, the respondent raised two points in limine, both of which appear to have been anticipated by the applicant as there are paragraphs dedicated thereto in the founding affidavit. The in limine points raised are the following:

 

5.1           That the founding and replying affidavits are not properly commissioned and are thus non-compliant with regulation 3(1) of the Regulations Governing the Administering of Oath or Affirmation.

 

5.2          That the application has been brought prematurely as internal remedies have not been exhausted by the applicant as required by the Promotion of Access to Justice Act("PAJA") 3 of 2000, although the review application in casu has neither identified itself as a PAJA nor legality one.

 

[6]           It was then submitted by the respondent in both its Heads of Argument and oral submissions before this court that the points in limine call for the application to be dismissed.

 

[7]          Responding to the first point in limine, the applicant contended that the founding and replying affidavits, both of which it is common course were signed by the applicant in Zimbabwe and commissioned in South Africa, are sound in law as they were signed in accordance with an exception to the general rule that affidavits must be commissioned in the presence of the deponent.

 

[8]          In her response to the second point in limine, the applicant on the one hand concedes that she has not exhausted internal remedies and seeks same to condoned by this court and on the other hand avers that her letters of complaint about the failure or refusal of the respondent to release her results be taken to have constituted her appeal.

 

[9]            I proceed to investigate and decide on the first point in limine.

 

[10]       Regulation 3(1) of the Regulations Governing the Administering of an Oath or Affirmation provides succinctly that the deponent to an affidavit shall sign the declaration in the presence of the Commissioner of Oaths.

 

[11]            While some affidavits may be wanting in some respects, this court is alive to an established practice that points taken on non-compliance of affidavits need not be upheld in an overly technical manner, as substantial compliance often suffices, and courts routinely condone same. In this regard the Full Court in S v Munn1973(3) SA 736(NCD) at 734H has long ago confirmed that non­ compliance with the regulations would not invalidate an affidavit if there was substantial compliance with the formalities of the regulations.

 

[12]           Indeed Knuttel N O and Others v Bhana and Others (2022) 2 All SA 201("Knuttel"), referred to and relied upon heavily by the applicant is authority for the view that there could be substantial compliance with regulation 3(1) in circumstances where physical presence of the deponent with the commissioner is impossible owing to extra-ordinary circumstances such as Covid. Thus, in that matter, a Whatsapp video call between the deponent and the commissioner of oaths was found to constitute substantial compliance with regulation 3(1).

 

[13]    The question is whether Knuttel is now a magic wand or a cure-all vaccine for all situations where deponents are for some reason or another unable to travel to where the commissioner of oaths is such reasons including alleged financial difficulties or any other pressing competing interests. Put differently, are we to understand and interpret Knuttel to be allowing everyone who raises a concern about their ability to be physically present at commissioning to do it by whatsapp video regardless of the gravity of the cause of inability to be physically present? I think not.

 

[14]    I understand Knuttel to have been influenced and decided amidst extra-ordinary circumstances imposed on our society by an international pandemic, Covid 19. In my view common-place impediments to physical presence which are capable of being addressed one way or another should not be elevated to the exceptionality that was presented by a pandemic for to do so would open the floodgates in such a manner that the spirit and purport of regulation 3(1) would be adulterated and defeated.

 

[15] I am disinclined to find that the stated causes of the applicant's failure to be physically present for the commissioning of the affidavits to wit, lack of financial resources and having a sick parent to take care of, are, although deserving of a sympathetic ear, anywhere near being extra ordinary or exceptional to attract the rationale of Knuttel.

 

[16]    Beyond the above is a question of whether there is any instrument available in law which is available to persons wishing to depose to affidavits from outside the borders of this country for utilizing in our courts to which the applicant ought to have availed herself.

 

[17]  The Justices of the peace and Commissioners of Oath Act 16 of 1963 provides as follows at section 8 regarding powers as to oaths outside the republic:

 

'(1)(a) The Minister may, by notice in the Gazzette, declare that the holder of any office in any country outside the Republic shall in the country in which or at the place at which he holds such office, have the powers conferred by section seven upon a commissioner of oaths, and may in lie manner withdraw or amend any such notice.

 

(b) Any person appointed as a commissioner of the Supreme Court of South Africa shall for the purpose of the exercise of his powers or the performance of his duties as such commissioner have at any place outside the Republic, the powers conferred by section seven upon a commissioner of oaths.

 

(2)           If any person referred to in subsection (1) administers an oath or affirmation to take a solemn or attested declaration from any person, he shall authenticate the affidavit or declaration in question by affixing thereto the seal or impressing thereon the stamp used by him in connection with his office or, if he possesses no such seal or stamp, certifying thereon under his signature to that effect.

 

(3)           Any affidavit, affirmation or solemn or attested declaration purporting to have been made before a person referred to in subsection (1) and to be authenticated in accordance with the provisions of subsection (2), may, on its mere production, be admitted in evidence in any court or received in any public office.

 

(4)           Any affidavit, affirmation or solemn or attested declaration made before a person referred to in subsection (1) and authenticated in accordance with the provisions of subsection (2) shall be as effectual as if made in the Republic before a commissioner of oaths.'

 

[18]            It seems to me the law is clear on what the applicant in casu ought to, as a citizen of our neighboring country and fellow "Commonwealth" nation Zimbabwe, have done if he wanted to have a properly commissioned affidavit and that is to have availed herself at the South African Embassy in Zimbabwe to get commissioning assistance. I hasten to state that regarding section 8 of  Act 16 of 1963 referred to supra issues of merely being directory as regulations are, do not arise, as this is a statutory provision that cannot just be ignored or disregarded. Clearly the legislature wanted affidavits deposed to outside the Republic to be commissioned through a well-set out process which the applicant could have and should have complied with if she was unable to travel to these shores for purposes of compliance with rule 3(1).

 

[19]             In all the above premises it is unavoidable for this court to uphold the first point in limine as effectively there is no founding affidavit, let alone a replying affidavit before me.

 

[20]             In the light of the afore going, it becomes, in my view, unnecessary to decide the second point in limine as there essentially is no proper application before me.

 

[21]            In the result the following order is made:

 

21.1.    The point in limine of the founding affidavit being non-compliant with the Regulations Governing the Administering of Oaths and Affirmations is upheld.

 

21.2.    The application is dismissed with costs.

 

M S MONENE

ACTING JUDGE OF THE HIGH COURT,

LIMPOPO DIVISION, POLOKWANE

 

APPEARANCES

 

Heard on                           : 04 MAY 2023

Judgment delivered on     : 28 July 2023

 

For the Applicant	: Mr Moitsi
	: Moitsi and Associates Inc
	: TEL: 076 164 6165
	: Email: moitsiassociates@gmail.com
For the Respondent	: Adv. Sandra Selokela Makoasha
Instructed by	: S Matsepe Attorneys
	: Tel: 015 007 1051
	: Email: smatsepeattomeys.co.za

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