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

LexisNexis South Africa (LNSA), a provider of legal information services, developed a secure web-based platform called LexisSign (LS system) that facilitates the electronic signature of documents, including affidavits administered via audio-visual platforms. LNSA sought declaratory relief to interpret regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation, which requires a deponent to sign a declaration "in the presence of" a commissioner of oaths. The regulation was promulgated in 1972 under the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. LNSA contended that recent decisions, particularly Briedenhann from the Eastern Cape High Court, which held that "in the presence of" means "in the physical presence of", were outdated given modern technology. LNSA disclosed there was no live dispute but claimed its clients desired greater legal certainty regarding the validity of oaths administered via electronic platforms. The Minister initially opposed the application but later filed a notice to abide. The high court dismissed the application, finding that the wording of regulation 3 was clear and that interpreting it otherwise would amount to legislation rather than interpretation. LNSA appealed to the Supreme Court of Appeal.

• Whether LNSA had established the requisite interest in an existing, future, or contingent right or obligation to engage the court's jurisdiction to grant declaratory relief under s 21(1)(c) of the Superior Courts Act 10 of 2013
• Whether the phrase 'in the presence of' in regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation could be interpreted to include administration of oaths via audio-visual platforms
• Whether the court could grant declaratory relief in the absence of a live dispute and where the matter was essentially academic or hypothetical
• Whether the declaratory relief sought would amount to judicial usurpation of executive legislative power

The appeal was dismissed.

An applicant for declaratory relief under s 21(1)(c) of the Superior Courts Act 10 of 2013 must establish an interest in an existing, future, or contingent right or obligation sufficient to engage the court's jurisdiction. A mere commercial interest in a particular interpretation of legislation or regulations does not constitute the requisite legal interest. Courts will not exercise their discretionary power to grant declaratory relief where the matter is academic, abstract, or hypothetical, and not tied to a concrete factual dispute. An application for declaratory relief may not be used as a back-door appeal against a judgment to which the applicant was not a party. Where the effect of granting declaratory relief would be to fundamentally change a regulatory regime and usurp executive regulatory powers, courts must decline to grant such relief, as the appropriate mechanism for change is through the legislative process. The interpretation of "in the presence of" in regulation 3 of the Regulations Governing the Administering of an Oath or Affirmation means physical presence, and any change to this requirement must be effected by the Minister through regulatory amendment under s 10(1)(b) of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963.

The Court observed that while the continued requirement for physical presence when administering oaths for affidavit purposes may be out of step with modern technology, this does not mean courts can use declaratory relief to achieve legislative change through interpretation. The Court noted that any alternative method of administering oaths for affidavit purposes would need to serve the same protective purpose as the current requirement - providing a guarantee to courts that the oath was understood and accepted by the deponent. Unlike oral testimony where courts have oversight when oaths are administered, courts have no such oversight for affidavits. The Court indicated that implementing changes to allow electronic administration of oaths would necessarily involve policy, technical, and practical considerations that are more appropriately addressed through the regulatory process. The Court observed that granting the broad relief sought would potentially open the door to numerous unidentified audio-visual platforms being used to administer oaths, with no evidence of adequate safeguards. The judgment noted it was unfortunate that the high court did not have the benefit of the Minister's perspective and that three law bodies invited to participate as amici curiae did not respond.

This case is significant for clarifying the limits of declaratory relief under s 21(1)(c) of the Superior Courts Act 10 of 2013. It emphasizes that an applicant must establish a genuine legal interest in an existing, future, or contingent right or obligation, and that a mere commercial interest in a particular interpretation is insufficient. The judgment reinforces the principle that courts will not grant declaratory relief for academic, abstract, or hypothetical questions, even where legal certainty might be desirable. It also highlights the important separation of powers between the judiciary and executive, emphasizing that courts should not usurp executive regulatory powers by effecting substantive changes to regulations under the guise of interpretation. The case confirms that fundamental changes to regulatory regimes, particularly those involving policy and technical considerations regarding modern technology, must be made through the legislative process rather than judicial declaration. The judgment also confirms the interpretation established in Briedenhann that "in the presence of" in regulation 3 means physical presence, and that any change to accommodate electronic administration of oaths for affidavit purposes must come from the Minister through regulatory amendment.