The High Court refused to grant summary judgment because the bank attached an affidavit that referred to the deponent as ‘he’ when it appeared that the deponent was in fact a ‘she’. The application for summary judgment was regarded as a irregular proceeding and was set aside because the purported verifying affidavit was not an affidavit.
Absa Bank Ltd v Botha NO (39228/12) [2013] ZAGPPHC 163; 2013 (5) SA 563 (GNP) (7 June 2013) per Kathree-Setiloane J.
Excerpts without footnotes
[6] The verifying affidavit must satisfy the general requirements for affidavits as contained in the Regulations (“the Regulations”) promulgated in terms of the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963 (“Justices of the Peace and Commissioners of Oaths Act”).
In terms of the Regulations the oath or affirmation is administered by a commissioner of oaths. Before a commissioner of oaths administers the prescribed oath or affirmation, the commissioner of oaths is required to ask the deponent:
(a) Whether he knows and understands the contents of the declaration;
(b) Whether he has any objection to taking the prescribed oath; and
(c) Whether he considers the prescribed oath to be binding on his conscience.
[7] If the deponent answers these questions in the affirmative, the commissioner of oaths must administer the oath. The deponent is required to sign the statement in the presence of the commissioner of oaths and, if unable to write, he or she must affix his mark in the presence of the commissioner of oaths at the foot of the statement.
In terms of Regulation 4 (1) the commissioner of oaths is required to certify that the deponent has acknowledged that he or she knows and understands the contents of the declaration. Regulation 4(1) reads as follows:
“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 is required to state the manner, place and date of taking the declaration.”
The commissioner of oaths is, thereafter, required to sign the declaration, print his full name and business address below his signature, and state his designation and the area for which he holds his appointment or his office if he has been appointed ex officio.
[8] Although Rule 32(2) expressly requires that an affidavit accompany an application for summary judgement, a statement which was merely affirmed in accordance with the Regulations also complies with the requirements of Rule 32(2). Subject to whether there has been substantial compliance with the Regulations, the court has a discretion to refuse an affidavit which does not comply with the Regulations. Should a commissioner of oaths not certify that the verifying affidavit in a summary judgment application had been sworn to or affirmed, the court will be reluctant to apply the maxim omnia praesumuntur rite esse acta donec probetur in contrarium, also known as the “presumption of regularity”, for purposes of making the assumption that the document had, in fact, been sworn to (or affirmed) and signed in the presence of the commissioner of oaths.
“He” means “she”
[9] The plaintiff contends that because Regulation 4(1) uses the pronoun “he” to describe the deponent, there was nothing irregular in the commissioner of oaths describing the deponent as “he” as opposed to “she”.
Section 6 of the Interpretation Act, 33 of 1957 provides that:
“In every law, unless the contrary intention appears−
Words importing the masculine gender includes females;
…”
Relying for support on s 6 of the Interpretation Act, the plaintiff contends that because Regulation 4(1) contemplates the word “he” to include both the male and female genders, it is of no significance that the deponent is certified by the commissioner of oaths as being a male as opposed to a female. The plaintiff submits, in this regard, that there can be no doubt that the deponent, Sunel Du Plessis, attested to the affidavit as this has been certified by the commissioner of oaths. Thus, the plaintiff’s contention is that ex facie the verifying affidavit there has been substantial compliance with the Justices of the Peace and Commissioners of Oaths Act and the Regulations promulgated thereunder. Accordingly, the plaintiff submits that the defendants’ Rule 30 objection is frivolous and an abuse of the court process.
[10] I do not agree. Section 6 of the Interpretation Act makes it clear that the words importing the masculine gender also include the feminine. It follows that if, in legislation (including sub-ordinate legislation) the masculine gender is used then it includes the female gender. Thus, where the pronoun “he” is used, as in the case of Regulation 4(1), then it includes reference to the female pronoun “she” as well.
What this means, in the context of Regulation 4(1), is that regardless of whether the deponent is male or female, the commissioner of oaths is required to certify below the deponent’s signature or mark that the deponent has acknowledged that he (where the deponent is a male), or she (where the deponent is a female) understands the contents of the declaration and that he or she (depending on the gender of the deponent) has stated the manner, place and date of taking the declaration.
Thus, if the deponent is a female, the commissioner of oaths would be required to use the pronoun “she”, and if the deponent is a male, the commissioner of oaths would be required to use the pronoun “he”. In a case, such as this, where the commissioner of oaths certifies that the deponent has acknowledged that “he” knows and understands the contents of the declaration, but from the declaration itself it is apparent that the deponent is a female, because she declares as much, then the Court would be unable to place reliance on the certification of the commissioner of oaths because ex facie the affidavit it would be unclear whether the deponent is a male or a female.
Hence, the Court would be unable give effect to the “presumption of regularity” for purposes of assuming that the declaration was sworn to (or affirmed) and signed in the presence of the commissioner of oaths.
Macsteel Service Centres SA (Pty) Ltd v Profin Trading 35 CC and Others (96119/2015) [2016] ZAGPPHC 446 (17 June 2016) per Ranchod J.
Excerpts
[5] The applicant takes issue with the fact that the opposing affidavit is deposed to by a male person (the third respondent) but the certificate of the Commissioner of Oaths reads as if the deponent is a female. Hence, says applicant, the opposing affidavit is defective and the application effectively stands unopposed. I was referred to ABSA Bank Ltd v Botha and Others Case No. 39228112 a judgment in this Division by Kathree-Setiloane J (which appears to be as yet unreported) which dealt with this issue.
There the defendant objected to the plaintiff’s verifying affidavit in support of the application for summary judgment in that although the deponent was a female, the commissioner of oaths certified that she was a male. The defendant filed a notice in terms of Rule 30 objecting to the filing of the affidavit as an irregular step. The learned Judge upheld the objection.
It was held at para [5] that the verifying affidavit represents the cornerstone of the summary judgment procedure under Rule 32(2), which permits the grant of a final judgment or order in a defended action without full pleadings or a trial. It would appear thus that a strict standard of compliance was applied as against the plaintiff.
[6] The question is whether the same strict standard should be applied in the case of the defendant as well. However, the first point that distinguishes the present case before me from the Absa Bank case is that here no objection has been made by the applicant in terms of Rule 30 calling upon the third respondent to rectify the alleged defect. It has been raised in argument.
[7] It is also to be noted that in terms of Rule 32(4) the plaintiff is confined to the affidavit in support of summary judgment. “No evidence may be adduced by the plaintiff otherwise than the affidavit referred to in sub-rule 2…”.
. . . . .
[9] In my view the Absa case, insofar as it dealt with a defective affidavit by the plaintiff is concerned can be distinguished from the instant case where the defendant’s affidavit is defective in the manner referred to earlier. To close the doors of the court to the defendant in these circumstances would mean adopting a highly technical approach to the affidavit. (W M. Mentz & Seuns (Edms) Bpk & Katzake 1969(3) SA 306(T) at 311). In any event, the third respondent says in his affidavit that he is a male and has signed it as such. It is the commissioner of oaths who made the error.