Hilary Muza 
One time or another in our everyday dealings, we find ourselves requiring the services of a Commissioner of Oaths.
The major role played by this public official is to authenticate documents and to administer oaths, particularly, where such oaths relate to written affidavits.
Such documents may be required for use in some public offices or for court purposes.
A typical example where an affidavit is required by a public office, is where one is applying for a firearm licence.
I have been compelled to discuss the issue of this public official after I noted a worrying proliferation of individuals offering this service, and my worry being whether such individuals are operating within the confines of the law.
I have observed some of those who claim to be commissioners of oaths, setting up offices and putting up banners and advertising for their services and, then charging various amounts of money for the said services.
My observation is that authenticating documents and commissioning of affidavits is now a brisk business for some, particularly, those operating within business districts.
While investigating the legality of their conduct, I pounced on the Justices of the Peace and Commissioners of Oaths Act [Chapter 7:09] (“the Act”).
This Act is administered by the minister of Home Affairs.
The minister is given power to appoint a Commissioner of Oaths. The minister may appoint commissioners of oaths for “Zimbabwe or for one or more districts”.
This is in terms of Section 6. The ordinary, plain, grammatical meaning of this section appears to point to the fact that commissioners of oaths have jurisdiction.
This can be perceived from the manner in which appointment can be made to serve the country as a whole or “one or more districts”.
“District” refers to a district into which Zimbabwe has been divided in terms of the Rural District Councils’ Act [Chapter 29:13].
The issue of jurisdiction would mean that a document commissioned in a certain district is only limited for use in such a district.
However, for a commissioner of oaths who is appointed to serve the whole country, documents authenticated or commissioned before him may be used without limitation in the whole country.
The law is made more clearer in Section 8 which provides that, “…..commissioner of oaths may within the area for which he is appointed, administer an oath to any person”.
If my interpretation is correct, of which I believe it to be, then it may turn out that as it relates to particularly courts documents, a violation of the Act may have been ongoing as a result of ignorance and such ignorance arising from a failure to pay close attention to the meaning of Section 6. Commissioners of oaths are appointed upon application to the minister.
One has to be mature and with an impeccable curriculum vitae, in addition to also being a person of high integrity and good morals.
These positive character traits are an overriding requirement because the business of authenticating documents and commissioning affidavits require high levels of honesty and responsibility.
Suitable candidates for appointment as commissioners of oaths are usually church pastors, bishops, retired ambassadors and retired senior police officers.
I must hasten to mention that legal practitioners are by virtue of their office, commissioners of oaths, and they do not need to be appointed by the Minister as prescribed in the Act.
A commissioner of oaths shall authenticate an affidavit by affixing thereto, his seal or by pressing thereon his stamp and if he possesses no seal nor stamp, he shall by his hand satisfy that he has authenticated the affidavit.
The case of Daniel Sibanda v Ray Ndhlukula and Anor HB 103/16, dealt with the issue of administering of an oath.
The applicant argued that respondent’s affidavit had not been properly sworn or attested to by a commissioner of oaths, since it merely contained a thumb print with no explanation stating why there was a thumb print instead of a signature.
He contended that there was nothing in the affidavit presented before the court to show that the commissioner of oaths had satisfied himself that the deponent understood the contents of the affidavit as he was illiterate.
The court dismissed applicant’s argument basing on the absence of specificities in the regulations on the manner in which an affidavit ought to be attested.
Section 10 (2) provides that, “….any commissioner of oaths who charges or demands any fee or reward for doing anything in his capacity as….commissioner of oaths….shall be guilty of an offence and liable to a fine not exceeding level 7 or to imprisonment for a period not exceeding one year….”
It is apparent therefore, that those commissioners of oaths who are charging a fee for their services are violating the law.
This section would not apply to legal practitioners since they are not appointed by the minister but are in existence through appointment by the High Court.
Further, by virtue of their office, they are entitled to charge a fee for their services. It would mean therefore, that commissioners of oaths appointed by the minister are so appointed for a public duty that must be rendered free of charge.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
