LexisNexis Falls Short at the SCA: The Future of Remote Affidavits in South Africa

Introduction

The Supreme Court of Appeal has now spoken — and the message is clear. In LexisNexis South Africa (Pty) Ltd v Minister of Justice and Constitutional Development, the SCA dismissed LexisNexis’s appeal and confirmed that remote, audio-visual commissioning of affidavits is not legally sufficient under the current Regulations.

For South African attorneys, litigators, commissioners of oaths, and corporate compliance teams, this judgment is not just academic. It directly affects daily practice, turnaround times, and the validity of affidavits filed in courts and administrative bodies across the country.

What Was at Issue?

The central legal question was straightforward:

Does an oath or affirmation taken over a live audio-visual link meet the legal requirement that an affidavit be taken “in the presence of” a commissioner of oaths?

LexisNexis argued for a broad interpretation to accommodate modern technology. The Minister of Justice argued that “presence” still means physical presence. The SCA agreed with the Minister.

The SCA’s Reasoning — In Plain Language

• Words in legislation and regulations must be given their ordinary meaning.

• “In the presence of” means physical presence.

• Remote audio-visual commissioning does not automatically meet required safeguards.

• Courts cannot rewrite Regulations — that task belongs to the Minister or Parliament.

Implications for Practitioners

1. Remote commissioning is not legally safe.

2. Opposing parties may challenge remotely commissioned affidavits.

3. Courts may refuse such affidavits.

4. Corporates must revisit internal onboarding and compliance processes.

If you must commission an affidavit:

• Do it in person wherever possible.

• If unavoidable, and you use a remote method:

 – Verify identity carefully.

 – Record the session (if consent is given).

 – Keep a formal note explaining why remote commissioning occurred.

 – Warn your client of the legal risk.

 – Re-confirm the affidavit in person later where possible.

Will the Law Change?

Reform is likely in the future, but for now, the Regulations remain unchanged. Until then, “in the presence of” requires physical proximity.

Benaters’ Professional View

This judgment highlights the need for regulatory reform rather than judicial reinterpretation. Until changes are made, physical commissioning remains the only legally safe option.

Conclusion

The SCA’s dismissal of the LexisNexis appeal reinforces that remote commissioning carries significant legal risk. Organisations relying on digital processes should reassess their compliance protocols immediately.