The above question is somewhat more complex if one takes into account the provisions of the Justice of the Peace and Commissioner of Oaths Act, 16 of 1963 as read with the various Regulations thereto (“the Act”).
The consequences of not having a document properly commissioned, the point being taken either at an Insolvency Enquiry or at the hearing of an Application, either opposed or unopposed, can be dire. The claim may be rejected or an Application dismissed on this ground alone.
In terms of the Act a Commissioner of Oaths may within the area for which he is appointed as a Commissioner of Oaths administer an oath or affirmation to or take a solemn or attested declaration from any person, except for certain specifically mentioned issues.
The Minister may by notice in the Government Gazette designate the holder of any office as a Commissioner of Oaths such as an Attorney, Bank Manager or Police Officer.
In terms of the regulations to the Act, the Minister is entitled to prescribed the form or manner in which an oath or affirmation shall be administered.
In terms of the Regulation promulgated in Government Notice GNR.1258 of 21 July 1972 the following is prescribed:-
- the Deponent shall sign the declaration in the presence of the Commissioner of Oaths and if the Deponent is not able to write then he/she shall affix a mark at the foot of the declaration;
- the Commissioner in turn is required to do the following:-
- sign the declaration and print his full names and business address below his signature;
- state his designation and area in which he holds his appointment or office held by him if he holds his appointment ex officio;
- a Commissioner of Oaths shall not administer an oath or affirmation relating to a matter in which he has an interest.
Accordingly, it is imperative that when documents are commissioned that all the prescribed information as detailed above appear below the Commissioner’s signature.
In addition, and while this information cannot be confirmed after the fact, a Commissioner of Oaths is obliged in terms of the Regulation to ask the Deponent:-
- whether he/she knows and understands the contents of the declaration;
- whether he/she has any objections to taking the prescribed oath; and
- whether he/she considers the oath to be binding on his/her conscience.
It is only after the Deponent has acknowledged and confirmed the facts referred to above that the Commissioner of Oaths may administer the prescribed oath.
It appears to be a case of Deponent and Commissioner of Oaths beware!
– Gavin Smith, Senior Associate – Lanham-Love Attorneys