Validity of Consent

In Knuttel NO and Others v Bhana and Others [2022] 2 All SA 201 (GJ), whether there is substantial compliance with the requirements for the signing and commissioning of a founding affidavit when done via a WhatsApp video call.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Commissioning of affidavit - Requirement that a deponent sign the declaration in the presence of a commissioner of oaths: In Knuttel NO and Others v Bhana and Others [2022] 2 All SA 201 (GJ) the court had to decide whether there was substantial compliance with the requirements for the commissioning of the founding affidavit, and whether the second respondent had an enrichment lien over the property. The application was for eviction of the first respondent and others from property owned by a trust in which the applicants were trustees. The deponent to the founding affidavit was infected with COVID-19 at the time, the affidavit was commissioned via a Whatsapp video call. Regulation 3(1) of the Regulations Governing the Administering of an Oath or Affirmation requires that a deponent sign the declaration in the presence of a commissioner of oaths. Non-compliance with regulations does not per se invalidate an affidavit if there was substantial compliance with the formalities in such a way as to give effect to the purpose of obtaining a deponent’s signature to an affidavit.

Based on concessions made by the first respondent after papers were filed, the matter eventually distilled to an application for eviction from the property of the first respondent, and through her the second respondent and his family, which the first and second respondents contested on the basis of a right of retention (ius retentionis) in favour of the second respondent, arising out of the alleged unjust enrichment of the applicants by the cost occasioned to the second respondent of effecting improvements to the property, and of the alleged increase in value of the property as a result of the improvements. The lease agreement between the trust and the first respondent required the latter to obtain the applicants’ consent before effecting any improvements. The second respondent attempted to avoid that requirement by claiming that the relevant contractual term did not extend to him as a non-party to the agreement of sale. He also relied on the oral consent that he alleged the trustees had given him for the improvements. The court referred to case authority stating that a third party with knowledge of the terms of a contract between two other parties (in this case, the second respondent), may be held bound by those terms. Explaining the nature of and requirements for a right of retention, the court rejected the defence of an enrichment lien. The eviction order was accordingly granted.

Merilyn Rowena Kader
Legal Editor at LexisNexis