A recent case revealed that a legal document shared over a Whatsapp video fulfilled the necessary procedure to make it valid.
Merilyn Kader, an attorney at LexisNexis, said that in the case of Knuttel and Others v Bhana the court had to decide whether there was substantial compliance with the requirements for the commissioning of a founding affidavit that needed to be signed in the presence of a commissioner of oath.
Knuttel and others from a property owned by a trust wanted to evict Bhana, who was one of the trustees. The deponent (the person who made the affidavit under oath) was infected with Covid-19 at the time, and 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, said Kader.
The court found that 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 was eventually distilled to an application for eviction from the property of the first respondent, and through her, the second respondent and his family said Kader.
The respondents contested on the basis of a right of retention in favour of the second respondent. This was due to an 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, said Kader.
Under the lease agreement between the trust and Bhana, he was required to obtain the consent of Knuttel before effecting any kind of improvements to the property.
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, said Kader. 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 the 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, and an eviction order was accordingly granted, said Kader.
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