In terms of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Act), a Minister may appoint any person or designate the holder of any office as a commissioner of oaths. A list of such persons was published in the Government Gazette. (Government Notice 1257 Government Gazette 21 July 1972).
Section 7 of the Act provides:
“Any Commissioner of Oaths may, within the area for which he is a Commissioner of Oaths, administer an oath or affirmation to or take a solemn or attested declaration from any person, provided that he shall not administer an oath or affirmation or take a solemn or attested declaration in respect of any matter in relation to which he is in terms of any regulation made under Section 10 prohibited from administering an oath or affirmation or taking a solemn or attested declaration, or, if he has reason to believe that the person in question is unwilling to make an oath or affirmation of such declaration.”
Regulations Governing The Administration of an Oath or Affirmation
In terms of section 10 of the Act the following regulations are applicable:
“The State President has, in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 126 of 1963), been pleased to make the following regulations:
1.(1) An oath is administered by causing the deponent to utter the following words: “I swear that the contents of this declaration are true, so help me God”.
(2) An affirmation is administered by causing the deponent to utter the following words: “I truly affirm that the contents of this declaration are true”.
2.(1) Before a commissioner of oaths administers to any person the oath or affirmation prescribed by regulation 1 he shall ask the deponent –
- whether he knows and understands the contents of the declaration;
- whether he has any objection to taking the prescribed oath; and
- whether he considers the prescribed oath to be binding on his conscience.
(2) If the deponent acknowledges that he knows and understands the contents of the declaration and informs the commissioner of oaths that he does not have any objection to taking the oath and that he considers it to be binding on his conscience the commissioner of oaths shall administer the oath prescribed by regulation 1(1).
(3) If the deponent acknowledges that he knows and understands the contents of the declaration but objects to taking the oath or informs the commissioner of oaths that he does not consider the oath to be binding on his conscience the commissioner of oaths shall administer the affirmation prescribed by regulation 1(2).
3.(1) The deponent shall sign the declaration in the presence of the commissioner of oaths.
(2) If the deponent cannot write he shall in the presence of the commissioner of oaths affix his mark at the foot of the declaration: Provided that if the commissioner of oaths has any doubt as to the deponent’s inability to write he shall require such inability to be certified at the foot of the declaration by some other trustworthy person.
4.(1) Below the deponent’s signature or mark the commissioner of oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration.
(2) The commissioner of oaths shall –
(a) sign the declaration and print his full name and business address below his signature; and
(b) state his designation and the area for which he holds his appointment or the office held by him if he holds his appointment ex officio.
6. A commissioner of oaths shall not charge any fee for administering any oath or affirmation or attesting any declaration.
7.(1) A commissioner of oaths shall not administer an oath or affirmation relating to a matter in which he has an interest.
(2) Subregulation (1) shall not apply to an affidavit or a declaration mentioned in the Schedule.”
Declarations exempted from the provisions of regulation 7(1):
“(1) A declaration taken by an attorney which –
(a) is required for the obtaining of registration in the Deeds Registry referred to in Section 1(1) of the Deeds Registries Act 1937 (Act 47 of 1937);
(b) should be furnished to a Minister or administrator or an officer in the service of the State (including a Provincial Administration, the South African Railways and Harbours and the Department of Posts and Telecommunications), or to someone who is an officer or employee of the Government service referred to in Section 2 of the government Service Act, 1980 (Act 2 of 1980), of the National Assembly of South West Africa.
(2) A declaration taken by a Commissioner of Oaths is not an attorney and whose only interest therein arises out of this employment in the course of this duty.”
Administration of Oaths on Affidavit outside the Republic
Section 8 of the Act provides as follows in respect of an affidavit executed outside the borders of South Africa:
“(8)(1)(a) The Minister may, by notice in the Gazette, 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 7 upon a commissioner of oaths, and may in like 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 7 upon a Commissioner of Oaths.
(2) If any person referred to in sub section (1) administers an oath or affirmation to or takes 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 sub section (1) and to be authenticated in accordance with the provisions of sub section (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 sub section (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.” (my underlining).
It is clear that an attorney, conveyancer or notary may administer an oath at any place outside the Republic, provided he/she affixes his seal of office thereon, or certifies thereon accordingly.
Property Law Specialist