VJS v SH

The applicant (VJS) and respondent (SH) were married in 2012 and divorced on 14 December 2022. A settlement agreement incorporated into the divorce order provided for joint parental responsibilities, contact rights, and maintenance of R7,500 per month for the minor child (born 24 November 2017). The applicant, who works as a project manager for the US Embassy in Islamabad, Pakistan, discovered WhatsApp conversations suggesting the respondent had an extramarital affair with one Mr MW and that Mr MW referred to the child as 'my little girl.' The applicant subsequently underwent two separate paternity tests (LAB DNA Scientific and Genediagnostics), both of which excluded him as the biological father. The respondent was personally served with the application but did not oppose it or appear in court. The applicant sought termination of his parental responsibilities and rights, deletion of relevant clauses from the settlement agreement, and authorisation to amend the child's birth certificate and population register without the respondent's consent. Due to his location in Pakistan and risks to his employment, the applicant's founding affidavit was commissioned remotely via Zoom video call by a commissioner of oaths in South Africa.

• Whether an affidavit commissioned remotely via audiovisual link (Zoom) while the deponent is outside the Republic complies substantially with Regulation 3(1) of the Regulations Governing the Administering of an Oath or Affirmation, read with the Justices of the Peace and Commissioners of Oaths Act 16 of 1963.
• Whether the applicant's parental responsibilities and rights in respect of the minor child should be terminated on the basis that he is not the biological father.
• Whether the settlement agreement incorporated into the divorce order should be amended to delete provisions relating to maintenance and contact.
• Whether the applicant should be granted leave to approach the Department of Home Affairs to amend the population register and birth certificate without the respondent's consent.

1. The applicant's parental responsibilities and rights under s 18 of the Children's Act 38 of 2005 in respect of the minor child PJH were terminated. 2. Specific paragraphs of the settlement agreement dealing with maintenance and contact were deleted from the divorce order. 3. The applicant was granted leave to approach the Department of Home Affairs for the alteration and deletion of his name as father on the population register and birth certificate without the respondent's consent. 4. No order as to costs.

1. Remote commissioning of affidavits via audiovisual link: Where substantial compliance with Regulation 3(1) of the Regulations Governing the Administering of an Oath or Affirmation is proved, a court may accept an affidavit commissioned via video conferencing even though not signed in the physical presence of the commissioner. The test is whether the purposes of the regulation — verifying the deponent's identity, ensuring the deponent understands the declaration, and administering a binding oath — have been achieved. 2. Paternity and parental responsibilities: The common law presumption pater est quem nuptiae demonstrant is rebuttable. Where scientific evidence (DNA tests) conclusively excludes a husband as the biological father of a child born during marriage, the presumption is rebutted and the husband has no legal duty to maintain the child, justifying the termination of parental responsibilities and rights under the Children's Act.

The court expressed the view that the Justices of the Peace and Commissioners of Oaths Act and its Regulations should be amended to bring them in line with modernisation by expressly allowing for electronic signing and commissioning of affidavits. The ability to sign and commission affidavits through video conferencing will significantly save time, reduce travel expenses, and expedite the finalisation of cases. The court also noted that the traditional 'wet ink' signing of affidavits is extremely cumbersome, costly, and time-consuming, particularly for witnesses outside the Republic. The court observed that the respondent's conduct appeared to constitute 'paternity fraud' and misrepresentation, as she intentionally identified the applicant as the father knowing he was not, in order to receive maintenance payments.

This case is significant for its progressive approach to the remote commissioning of affidavits via audiovisual links in South African civil procedure. The court departed from the stricter approach in FirstRand Bank v Briedenhann (2022) and instead aligned the interpretation of Regulation 3(1) with modern technological developments, including s 37C of the Superior Courts Act and s 158 of the CPA, both of which permit testimony via audiovisual link. The judgment promotes access to justice under s 34 of the Constitution by accommodating litigants who face hardship or impossibility in complying with the strict physical presence requirement. It also serves as an important authority on the rebuttal of the pater est presumption through DNA evidence and addresses the consequences of paternity fraud in the context of parental responsibilities and maintenance obligations under the Children's Act.