“Please, go back to the commissioner of oaths and repeat the process – you skipped a page!” –  do these words sound familiar?

Having documents commissioned should be a relatively simple task. In practice, however, minor mistakes, like a missed initial, can undermine the integrity of the entire process. Unfortunately, this is often only cured by returning to the commissioner of oaths and repeating the exercise.

To avoid this and prevent getting caught out, we explain the basics of commissioning and some tips on preventing misfires.

What is commissioning?

It is the process of a person swearing the truth and correctness of allegations made or facts pleaded in an affidavit. It includes an oath or affirmation and requires that parties declare that they have read and understood the contents of a document and that the oath or affirmation is binding on their conscience. The party taking the oath or affirmation is referred to as a “deponent”. This process is required to take place in the presence of a commissioner of oaths, after which he/she places a stamp and signature on the document to prove that the process took place (also known as “administering the oath”)[1].

The process is governed by the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (“the Act”). The Act stipulates the requirements of the process, confirms who may qualify as a commissioner of oaths and prescribes the powers that such an individual in that capacity may exercise.

Who is a commissioner of oaths?

An individual can qualify as a commissioner either by virtue of the office he/she holds (ex officio commissioner)[2], or after having been admitted as one following an application at the Department of Justice and Constitutional Development (“the DOJ”).[3]

You can approach the following ex officio commissioners:

  • Advocates; admitted attorneys, conveyancers and notaries; magistrates; and judge’s secretaries;
  • Sheriffs and Deputy Sheriffs;
  • Certain members of the South African Police Force (yes – you can just go to your nearest police station);
  • Certain South African Post Office employees;
  • Chartered Accountants;
  • All correctional officials employed by the Department of Correctional Services;
  • Certain health service officials, such as sisters and superintendents at state hospitals;
  • Certain employees of SARS; and
  • All duly appointed traditional leaders.

If an individual claims to be a commissioner appointed by the DOJ, it would be wise to  to request for and check his/her certificate of appointment beforehand.

The process

  1. Read your document from start to finish and check that all the information is accurate and correct – this is, after all, your sworn statement. Amendments should be finalized beforehand.
  1. Print a clean version of your final document and a duplicate for backup.
  1. Meet the commissioner in person.
  1. Present a form of identification to the commissioner for perusal prior to administering the oath.
  1. Whilst in each other’s presence, and before a commissioner of oaths administers to any person the oath or affirmation, the commissioner will ask you the following questions, which you must answer honestly:
    • Whether you know and understand the contents of the declaration;
    • Whether you have any objection to taking the prescribed oath; and
    • Whether you consider the prescribed oath to be binding on your conscience.
    • The commissioner of oaths will ask you to utter the following relevant words, depending on whether you choose to administer an ‘oath’ or an ‘affirmation’. An ‘oath’ is administered by causing the deponent to state the following: “I swear that the contents of this declaration are true, so help me God”. An ‘affirmation’ is administered by causing the deponent to utter the following words: “I truly affirm that the contents of this declaration are true”.
  1. It should be noted that the deponent has a choice between taking an oath or making an affirmation (often on religious grounds as an oath is religious and an affirmation is non-secular).
  1. Following the administering of the oath or affirmation, even though it is not a requirement in terms of the Act, each party (yourself and the commissioner) will initial the bottom right corner of each page of the document. This has become standard practice and reflects well on the authenticity of the commissioning process.[4]
  1. On the last page, there should appear a space for your full signature, a short declaration for the use of the commissioner and a space for the commissioner’s full signature and details. You must sign the last page after which the commissioner will do the same, by adding his/her full name, business address, the office held by him/her and the date and time.
  1. Page through your document to ensure that all the above requirements have been complied with.

Importantly, this process can either take place in person as described above or virtually (via electronic means). For a full explanation of the virtual process, see our article here.

The golden rules

  • A commissioner of oaths is prohibited from charging you a fee for this service.
    • It is, however, reasonable for a commissioner to claim for travel expenses if the commissioner meets you at a location other than his/her place of business.
  • A commissioner of oaths shall not administer an oath or affirmation in relation to a matter in which he/she has an interest (i.e. – they must be truly independent).
  • The commissioner of oaths may not administer an oath or affirmation if the deponent is unwilling to do so.
  • If the deponent makes false statements in the affidavit or document and causes for an oath or affirmation to be passed in respect of it, the deponent commits the offence of perjury and will be liable on conviction for penalties as prescribed by law.

If you have any questions pertaining to the above, do not hesitate to give our offices a call and one of our attorneys will gladly assist you.

[1] Section 7 of the Act prescribes the powers assigned to a commissioner of oaths. This includes the power to administer and oath or affirmation.

[2] Section 6 of the Act provides that the Minister may designate the holder of any specific offices as an ex officio commissioner of oaths for any area as specified in a Government Gazette notice.

[3] Section 5 of the Act states that a commissioner of oaths can be any person appointed as such by the Minister of Justice or appointed by any officer of the Department of Justice with the necessary authorization.

[4] See Minister of Safety and Security and others v Mohamed and another (2) [2010] 4 All SA 538 (WCC): Although it certainly is the practice for both the deponent and the commissioner to initial all pages of an affidavit on which their signatures do not appear, this practice is not a requirement for the validity of the affidavit. It is not required by the rules governing the administering of oaths and affirmations that are set out in the regulations promulgated under section 10 of the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963.