Recent Case: Law of evidence

• Author: Whitear, N.
• DOI: https://doi.org/10.47348/SACJ/v35/i1a7
• Published date: 07 July 2022
• Date: 07 July 2022
• Citation: (2022) 35 SACJ 101
• Pages: 101-114

Law of evidence

NICCI WHITEAR

University of KwaZulu-Natal

1 Attestation of an affidavit by a commissioner of oaths:

what constitutes an ‘interest’ in the matter disqualifying

the commissioner of oaths from attesting to the

affidavit?

In the case of Kouwenhoven v Minister of Police (2022 (1) SACR 164

(SCA)), the appellant appealed against the high court’s dismissal of an

application for the review and setting aside of a warrant of arres t issued

for him. The warrant of arrest had been issued in terms of s 5(1)(b) of

the Extradition Act 67 of 1962 at the request of the government of the

Netherlands after the conviction of the appellant there of complicity

in war crimes.

The unanimous judgement by the Supreme Court of Appeal was

penned by Wallis JA.

In this discussion, only one of the appellant’s grounds of appeal

will be dealt with, namely that an afdavit by Warrant Ofcer Van

der Heever of the Pretoria National Central Bureau of Interpol was

invalidly attested to and was therefore inadmissible. The argument

was that the attesting ofcer, Sgt Van Hagen, was employed in the

same ofce as Van der Heever and that she therefore had an interest

in the litigation to which the afdavit related, which disqualied her

from acting as a commissioner of oaths with regard to his afdavit

(at para [28]).

The basis for this challenge to the attestation of the afdavit was

reg 7(1) of the ‘Regulations Governing the Administering of an Oath or

Afrmation’ (published in terms of s 10 of the Justices of the Peace and

Commissioners of Oaths Act 16 of 1963, GN R1258, GG 3619, 21July

1972, as amended) (the regulations)). Regulation 7(1) provides that

a commissioner of oaths shall not administer an oath or afrmation

relating to a matter in which they have an interest. In terms of reg 7(2),

reg 7(1) does not apply to an afdavit or declaration mentioned in the

schedule to the regulations. Item 2 of the schedule to the regulations

provides for ‘a declaration taken by a commissioner of oaths who

is not an attorney and whose only interest therein arises out of his

employment and in the course of his duty’ (at para [28]). The statutory

position is thus that a commissioner of oaths who is not an attorney

is not forbidden from attesting to an afdavit relating to a matter

Recent cases 101

https://doi.org/10.47348/SACJ/v35/i1a7

101

(2022) 35 SACJ 101

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