By Ragiema Thokan-Mahomed, Legal, Ethics and Compliance Executive at
the South African Institute of Professional Accountants (SAIPA)
As announced in government gazette 37980 on 12 September 2014, the Justices of the Peace and Commissioners of Oaths Act No. 16 of 1963, Regulation No. 61B, recognises every Professional Accountant (SA) as an ex officio Commissioner of Oaths by virtue of their position of trust in society.
Says Ragiema Thokan-Mahomed, Legal, Ethics and Compliance Executive at the South African Institute of Professional Accountants (SAIPA): “The fiduciary duties of the title are few but their correct execution is essential to protecting the public interest and serving justice. They must, therefore, be treated with the same care and precision as the practitioner's professional services.”
A Commission of Oaths’ duties are twofold: administering oaths and certifying document copies. Readers can download SAIPA's Commissioner of Oaths Guide for more details, available at www.saipa.co.za/commissioner-oaths-guide.
A person can make a statement or agree to make a statement which they formalise by swearing to its truthfulness before the Commissioner of Oaths. The Commissioner must be present to confirm the person’s identity, and their willingness and competence to make the declaration. The statement is reduced to writing and certified by the Commissioner as a record that it was indeed made in their presence.
Certifying document copies
Valuable documents are seldom transferred to third parties for processing for fear of them being lost or damaged. A Commissioner of Oaths can certify a copy of a document as a true copy, allowing it to be used instead of the original. The Commissioner must, therefore, inspect the original, never taking it on faith or accepting secondary evidence that it exists and is identical. If it was later discovered that there was a difference, this would be a serious breach that may carry legal consequences for the Commissioner of Oaths. “Regardless, SAIPA will discipline accountants found guilty of negligence in these duties to protect the Institute from disrepute,” says Thokan-Mahomed.
The requirements of the above duties must be satisfied in all respects as even the slightest error or omission can render the process ineffective. In Absa Bank Ltd vs Botha NO and Others, an affidavit described a female defendant using alternating masculine and feminine terms. This contradictory identification called into question whether the Commissioner of Oaths had been present and therefore the validity of the affidavit. Inevitably, the court dismissed the case with costs payable by the plaintiff. “Sadly, the plaintiff likely had a strong case and suffered unnecessary loss. Whether the Commissioner of Oaths was held accountable is unknown but they were undoubtedly professionally embarrassed,” reports Thokan-Mahomed.
Unfortunately, similar incidents are common, involving both the administration of oaths and the certification of copies. In extreme cases, those involved in serious crimes may walk free. Additionally, a careless Commissioner of Oaths could be deemed complicit in a crime, for example, if they certify false copies later used in fraud.
“SAIPA members acting as a Commissioner of Oaths continue to be ambassadors and must conduct themselves with the same professionalism and trustworthiness befitting their designation,” concludes Thokan-Mahomed.
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