South Africans could soon find it easier to access everyday legal services. Proposed regulations could pave the way for affidavits to be commissioned remotely and signed electronically. This would replace rules that have governed oaths and affirmations for more than 50 years. The changes could also make digital affidavits more accessible to people across the country.
The Department of Justice and Constitutional Development published the draft Regulations Governing the Administering of an Oath or Affirmation on 31 July 2026. If finalised, the regulations would allow electronic commissioning through audio-visual communication. They would also recognise electronic signatures.
The proposed changes could remove uncertainty over whether a deponent and commissioner must be physically present together. Consequently, digital affidavits could become a practical alternative to traditional paper-based processes.
We previously sought greater legal certainty on this issue through a High Court declarator application. The application aimed to clarify whether existing rules allowed commissioners to commission affidavits using digital tools.
Modernising the commissioning of affidavits
Under the draft regulations, a commissioner could administer an oath or affirmation through audio-visual communication. This would apply when someone submits a document electronically, through an online portal or another legitimate electronic platform. The regulations state that an oath administered when the parties are not physically together would remain valid. It would carry the same validity as an oath administered in the commissioner’s physical presence.
The proposal represents an important step towards aligning everyday legal processes with how South Africans already live and conduct business. South Africans bank, transact, work, and communicate digitally every day, yet something as routine as commissioning an affidavit can still require two people to be physically present in the same place.
Modernising these rules is not about technology for technology’s sake. It is about removing unnecessary friction from the legal system while maintaining the safeguards that give sworn documents their integrity.
The development follows our efforts to obtain greater legal certainty around the use of digital processes for commissioning documents. Andrews said the proposed regulations address many of the practical and legal uncertainties that prompted that action. This enables technology to improve access rather than simply digitise an outdated process.
A person should not have to travel across a town, province or country simply to stand in front of a commissioner when technology can establish identity, enable the oath to be administered face-to-face and create an appropriate record of the interaction.
The draft regulations also define signing to include an electronic signature. This may consist of a person’s initials or name, provided they intend it to serve as a signature. The definition also includes the use of a more advanced electronic signature, as contemplated in the Electronic Communications and Transactions Act. These provisions could further support the adoption of digital affidavits by providing legal recognition for electronic signing methods.
Improving access to legal services
For ordinary South Africans, the changes could make a practical difference. This is particularly relevant for people in rural areas, those with mobility challenges, small businesses and anyone who needs to commission documents urgently. They could access digital affidavits without unnecessary travel or administrative delays.
This development could substantially improve access to the law for all South Africans. The public comment period ended on 13 August 2026. If finalised, the draft regulations would repeal and replace the Regulations Governing the Administering of an Oath or Affirmation of 1972. The proposed framework could therefore bring the commissioning of affidavits into line with contemporary digital practices.
Rules written in 1972 cannot reasonably be expected to anticipate how South Africans would communicate and transact more than half a century later. The law must protect trust and accountability, but it must also remain relevant to the society it serves.
Ultimately, the proposed regulations could represent a significant step towards modernising access to legal services. By recognising digital affidavits and electronic signatures, the changes could reduce administrative barriers while preserving the integrity of sworn documents.
Ian Andrews | CEO | LexisNexis South Africa | mail me |
