LexisNexis South Africa (Pty) Ltd v The Minister of Justice and Constitutional Development

LexisNexis South Africa (Pty) Ltd (LNSA), a global legal information provider, developed a web-based electronic signature platform called LexisSign (LS system). The platform facilitates the signing of documents, including affidavits, via a log-in and hyperlink method between a deponent and a commissioner of oaths. LNSA sought declaratory relief from the Gauteng Division of the High Court, Pretoria, to the effect that the phrase 'in the presence of' in regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation (promulgated under the Justices of the Peace and Commissioners of Oaths Act 16 of 1963) should be interpreted to include administration of an oath via live audio-visual electronic communication, and that regulation 3 does not require an Advanced Electronic Signature under the Electronic Communications and Transactions Act 25 of 2002. LNSA conceded there was no live dispute involving the issues; it sought the declarations to provide legal certainty after the Eastern Cape Division in *Briedenhann* interpreted 'in the presence of' as meaning physical presence. The Minister filed a notice to abide. The High Court dismissed the application, following *Briedenhann*, and refused leave to appeal. The Supreme Court of Appeal granted leave.

• Whether the appellant had established the requisite interest in an existing, future or contingent right or obligation necessary to engage the High Court's jurisdiction to grant declaratory relief under s 21(1)(c) of the Superior Courts Act 10 of 2013.
• Whether the Supreme Court of Appeal should interpret the phrase 'in the presence of' in regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation to include live electronic audio-visual communication.
• Whether a court may grant declaratory relief in respect of an abstract, academic or hypothetical matter in the absence of a live dispute.
• Whether a court may use declaratory relief to achieve legislative reform or usurp the executive's regulatory function under s 10(1)(b) of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963.

The appeal is dismissed.

A court must apply a two-stage approach when considering declaratory relief under s 21(1)(c) of the Superior Courts Act 10 of 2013: (1) it must first be satisfied that the applicant has an interest in an existing, future or contingent right or obligation; (2) only if that condition is met may the court exercise its discretion to grant or refuse the order. A purely commercial interest in securing a preferred statutory interpretation, or a desire to create 'legal certainty' in the abstract in the absence of an implicated legal right or obligation and a live dispute, does not satisfy the jurisdictional requirement. Furthermore, it is not competent for a court to grant declaratory relief in order to decide abstract, academic or hypothetical questions, nor may it use such relief to achieve legislative reform or usurp the regulatory function conferred by statute upon the executive.

The court observed that the interpretation adopted in *Briedenhann*—that 'in the presence of' means physical presence—currently provides legal certainty, supported by other high court decisions such as *Knuttel N.O. v Bhana* and *E D Foods SRL v Africa's Best (Pty) Ltd*. It noted that while the physical presence requirement may be out of step with modern technology, this does not empower a court to change it through declaratory relief. The court also remarked that any alternative method of administering oaths for affidavit purposes would have to offer the same guarantee to a court as physical presence, namely that the deponent understood and accepted the oath, and that the broad relief sought by LNSA would open the door to any number of unidentified audio-visual platforms without proven safeguards. Finally, the court commented that the appropriate avenue for reform lies with the Minister's regulatory powers under s 10(1)(b) of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963.

The decision clarifies and reinforces the strict requirements for declaratory relief under s 21(1)(c) of the Superior Courts Act 10 of 2013. It emphasises the mandatory two-stage approach: first establishing a legally cognisable interest in an existing, future or contingent right or obligation, and only then exercising discretion. The judgment underscores that courts will not entertain abstract, academic or hypothetical questions, nor will they issue advisory opinions or validate commercial products in the absence of a concrete dispute. It also affirms the separation of powers by holding that updates to regulatory schemes—such as permitting remote commissioning of affidavits—must be effected through legislative or executive processes rather than by expansive judicial interpretation under the guise of declaratory relief.