The Supreme Court of Appeal disallowed the appeal and held that an affidavit supporting a creditor’s claim in terms of s 44 of the Insolvency Act 24 of 1936 could be commissioned by the attorney acting for the claimant.  It falls within the exemption contained in item 1(b) of Schedule to Regulations Governing the Administering of an Oath or Affirmation, promulgated in terms of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963.  Even if the attorney has an interest in the matter this does not preclude the attorney from commissioning the affidavit.

Brenda NO v The Master of the High Court, Kimberley (20537/2014) [2015] ZASCA 166 (26 November 2015) per Swain JA (Maya DP, Theron, Wallis and Mathopo JJA concurring):

Excerpts [footnotes omitted]

[38] I agree with the reasoning and conclusion in these cases. Consequently, the purpose in furnishing the requisite affidavit, is no longer a relevant consideration in deciding whether the affidavit falls within the exemption contained in the amended schedule.  All that is required is an obligation to furnish an affidavit to ‘a Minister or an administrator or an officer in the service of the State’.  The reason why the affidavit is required by any of these officials is irrelevant to a determination of whether the exemption applies to the commissioning of a particular affidavit.

[39] The inquiry therefore is whether the affidavit which a claimant is obliged to deliver to the presiding officer in terms of s 44(4) of the Act in proof of a claim, is furnished to ‘an officer in the service of the State’. Section 39(2) of the Act provides that:

‘All meetings of creditors held in the district wherein there is a Master’s office shall be presided over by the Master or an officer in the public service, designated either generally or specially, by the Master for that purpose. Meetings of creditors held in any other district shall be held in accordance with the direction of the Master and shall be presided over by the magistrate of the district, or by an officer in the public service, designated either generally or specially, by the Magistrate for that purpose.’

[40] It is therefore clear that the presiding officer is ‘an officer in the service of the State’. Where a magistrate acts as the presiding officer the following conclusion in President of the Republic of South Africa & others v Reinecke [2014] ZASCA 3; 2014 (3) SA 205 (SCA) para 15 is relevant:

‘All these are indicia that, notwithstanding their whole or partial detachment from the public service, magistrates have not ceased to be employees of the State.’

Consequently where a magistrate performs the function of a presiding officer at a meeting of creditors, he or she acts as an ‘officer in the service of the State’ within the meaning of that term contained in the schedule to the regulations. If this were not so, it would mean that the validity of an affidavit submitted in proof of a claim in terms of s 44 of the Act, would be dependent upon whether the meeting of creditors was held in a district where there is a Master’s office, or not. Such an interpretation of the schedule would lead to an insensible or unbusinesslike result and would undermine the apparent purpose of the amended schedule to the regulations.

[41] In the result, an affidavit commissioned by an attorney with an interest in the matter furnished in proof of a claim to a presiding officer in terms of s 44(4) of the Act is furnished to ‘an officer in the service of the State’ and accordingly does not fall within the prohibition contained in reg 7(1). Consequently in the present case it matters not that Mr Engelbrecht may have represented the third respondent and may have held an interest in the proof of the third respondent’s claim, at the time he commissioned the third respondent’s affidavit.