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A certified copy is an endorsed duplicate of the primary document which informs independent third parties that the photocopy is a true copy of the original document. The copy is affixed with the stamp and signature of the commissioner of oaths. Certification of documents is important because it provides for the legal validity of documents.

*Who can be a commissioner of oaths?

Section 6 of the Justice of the Peace and Commissioners of Oaths Act provides that the Minister of Justice designates holders of certain offices as commissioners of oaths. This list is extensive

Attorneys; notaries; advocates; conveyancers; actuaries and accountants; auditor generals; members of a recognized professional body; members of the executive; members of the legislature; members of the judiciary; the police; directors, managers or company secretaries of banks or regulated financial services and heads of schools are the most commonly used commissioners of oaths. Upon retirement or resignation, these officers automatically cease to be ex officio commissioner of oaths. A person who wishes to become a commissioner of oaths can also apply to the Department of Justice and motivate in their application why such an appointment would be in the public’s interest.

*When does certification expire?

Timelines applicable to the certification of documents are dependent on the intended use of the certified documents. Different rules apply for use within or outside the republic. As a general rule, certification must not be older than three months. In 2019, the government published an immediate notice to stop government departments from requiring certified documents not older than three months to accompany applications for employment. The government noted that this practice negatively impacts on job seekers in the current South African climate and that there was a need to reduce the burden of providing continuously updated certified copies. The public sector (as well as the private sector) was encouraged to accept certified copies up to 6 months old. The Department of Public Service and Administration DPSA also issued the Human Resources Planning and Employment Practices: Circular 35 of 2019 to this effect. The rest of the suitability checks stipulated in regulation 67(9) of the Public Service Regulations of 2016 remain unchanged.

*Why does certification expire?

Certification is only valid if the officer who certified the copy is still employed by the same office and in the same capacity (in case there is need to verify the authenticity of the endorsement). Designated commissioners of oaths retire or resign from the offices which give them the power to provide services as commissioners of oaths thereby making any documentation they endorsed old documentation. The best way to prevent old documentation is to put timelines on the validity of certified copies.

*Certification of e-documents

The welcomed advances in technology and the widespread use of e-documents comes with its own challenges. The National Draft Broadband Policy advocates for e-health, e-education and e-government services. It poses certain challenges for commissioners of oaths and might frustrate members of the public who are in favour of the paperless system. How are copies of original e-documents certified? How can commissioners of oaths and the public stay on the right side of the law? At present pays lips, telephone bills, school reports, academic transcripts; company registration certificates etc. are no longer being printed out but emailed as e-copies. Can the commissioner of oaths certify a print out of the e-copy to authenticate that it is a true copy of the original document?

An interpretation of the existing laws might give a solution to some of these questions. Section 14 of the Electronic Communications and Transactions Act provides that an original electronic document is to be treated as an original printed document:

(1) Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if –

(a) the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and

(b) that information is capable of being displayed or produced to the person to whom it is to be presented.

(2) For the purposes of subsection 1 (a), the integrity must be assessed –

(a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display;

(b) in the light of the purpose for which the information was generated; (and)

(c) regard to all other relevant circumstances.

The commissioner of oaths would need to check if the original e-document is complete and unaltered and that the printed copy is an exact copy of the e-document. The original e-document must be capable of being displayed or produced to the commissioner of oaths.

Sources: Regulations Governing the Administration of an Oath or Affirmation; Justice of the Peace and Commissioners of Oaths Act 16 of 1963; Human Resources Planning and Employment Practices: Circular 35 of 2019; Regulations Governing the Designation of Commissioners of Oaths in Terms of Section 6; The National Draft Broadband Policy for South Africa; Apostille Convention of the Hague Convention of 5 October 1961; Public Services Act 54 of 1957; Public Services Act 103 of 1994; Electronic Communications and Transactions Act 25 of 2002


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