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 cour t’s dismissal of an

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

for him. The warrant of ar rest 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 t here of complicity

in war crimes.

The unanimous judgement by the Supreme Cour t of Appeal was

penned by Wallis JA.

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

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

der Heever of the Pretoria National Central Bureau of Interp ol was

invalidly attested to and was therefore inadm issible. 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 d isqualied her

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

(at pa ra [2 8]).

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

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

Afrm ation’ (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 admi nister an oath or afr mation

relating to a matter in which they have an interest. In ter ms 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 a rises 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 at torney

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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