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COLUMN The Benchmark— Affidavit – A Testing (Attesting) Document |
Affidavit – A Testing (Attesting) Document
“The Benchmark” is a new column written by members of the Bench, presenting invaluable feedback and
insight as to how lawyers can effectively put forward their cases in Court.
The word “affidavit” is a verb which originates from mediaeval Latin, meaning “he has sworn”.
The third person singular perfect tense of this word is “affido” which is “to swear”.
An affiant is the person who makes the affidavit. The word “affiant” is old French in origin meaning “to trust oneself to” as in making a solemn pledge, usually a marriage contract and the verb “affiance” means, inter alia, to make a vow or a promise.
In making an affidavit, the affiant has made a vow, a solemn pledge that he, the maker, is making a solemn pledge or vow as to the truth of the contents of the affidavit.
Any practitioner or legally trained person knows what an affidavit is. However, the origin and meaning of the word reminds us of the significance and importance of this often abused document.
An affidavit is defined as a document an affiant makes voluntarily, setting out personal knowledge of the affiant or contents of which are within his information or belief, pertaining to a particular set of facts or events. The affiant has this personal knowledge or belief by either direct observation or personal experience or by a belief in what he can state as true although not necessarily based on firsthand knowledge.
Anyone with the intellectual capacity to take an oath or to make an affirmation on the knowledge of the events and facts that he is setting out in the affidavit may make an affidavit. There is no clear legal requirement as to the age of the affiant; however, the legal concept, the origin and meaning of the word affidavit would pose a challenge to say, an eight year old possible affiant. But if the affiant is old enough, mature enough, to understand the facts and the legal and moral significance of an oath or affirmation, he can do so. I would say that the test of a minor’s intellectual and moral capacity to make an affidavit is a strict test and this should be rightly so.
The affidavit is made under oath or affirmation – this is an essential requirement. The oath and/or affirmation must be properly administered by any public officer authorised to administer oaths and affidavits and the affiant must therefore affix his signature to the affidavit in the presence of the said authorised officer for the affidavit to be valid in the eyes of the law.
An affidavit has a very important function in legal proceedings and even business matters.
The affidavit is a document judicial officers rely on for evidence in court proceedings, for civil and matrimonial matters and even criminal prosecutions. For business matters, a company may rely on an affidavit for statements of a company’s financial status or an individual’s creditworthiness.
Hence, the contents of the affidavit are important. This is elaborated upon further.
I do not propose to deal with the formal requirements of an affidavit in great detail as this can be read off
the Subordinate Courts Practice Directions, readily available from the website. However, regrettably,
many of these formal requirements have not been adhered to and the following is a summary of the basic
formal requirements which must be complied with:
1. It must be typewritten in Arial or Times New Roman font size 12, double spaced, on white A4 paper.
2. It can be double sided.
3. It must have a cover page and a backing sheet.
4. On the top right hand corner of both the cover page and backing sheet, state the party for who the affidavit is filed for eg, Plaintiff or Defendant, the name of the affiant, the ordinal number of the affidavit eg, whether 1st or 2nd or 3rd affidavit, the filing date and the type of hearing eg, summons hearing and summons number.
5. If the affidavit contains 30 pages or less staple it together at the top left hand corner. If it contains more than 30 pages, hard copies of the affidavit must be bound with a red plastic binding or spine if you are or acting for a Plaintiff, Petitioner and with a blue plastic binding or spine if you are or acting for a Defendant or Respondent.
6. Documents to be attached to the affidavit are attached as exhibits and each exhibit must be
clearly referred to in the body of the affidavit with a reference number, usually the initial of the affiant
eg, ABC-1, for the first exhibit and so forth. The exhibits are attached to the end of the affidavit and separated bya dividing sheet. The dividing sheet should not be white but a light coloured A4 paper and it must
contain an exhibit mark setting out the exhibit number and the name of the person it was affirmed or
sworn before. The dividing pages are not paginated. All exhibits are to be legible and paginated.
The contents of an affidavit are why I say it is a “testing” document, especially in matrimonial proceedings when affidavits are free fall, written litany of complaints against one spouse or former spouse, used to extol one’s virtues whilst besmirching the other’s character and reputation to the last poisonous full stop. In contested custody matters, neighbours, friends, colleagues, even passers-by are dragged into the written fray. Whether such affidavits are necessary remains to be seen.
To recap, an affidavit:
1. contains facts within the affiant’s personal knowledge;
2. is based on direct observation and personal experience; and
3. may contain statements of belief but there must be some basis for the belief so stated.
“On Saturday 1 January 2009 I was sitting on the couch of the living room in our matrimonial home at 123 ABC Street. It was about 12 noon. The Defendant came out of the kitchen. He was holding a knife. He walked towards me and stopped in front of me. He took the knife and held it against my neck.”
“I believe that he was going to cut me with the knife. I believe this because he had used a knife on me before and this is set out in my affidavit filed with respects to my application for a Personal Protection Order in SS 123 of 2009 filed on 31 December 2008.”
On the other hand, bombastic, unnecessary language and embellishments have no place in an affidavit:
“On Saturday 1 January 2009 I was sitting on the couch of the living room in our matrimonial home at 123 ABC Street watching “Wheel of Fortune”. It was about 12 noon. The Defendant suddenly charged out of the kitchen with his face red and mottled looking. He was in an explosive rage! I could see the veins throbbing on his forehead and spittle running down his chin. I was very frightened. He was holding a BIG kitchen knife! As I crouched on the couch in abject terror, he brandished the knife in a menacing manner and stalked towards me growling something that I could not make out as I was so terrified. He stopped in front of me and pressed the knife hard against my neck. I KNEW I was going to DIE!”
Example 3 would do better in a work of fiction or a screen play for a slasher movie.
Whilst the affiant wants the court to appreciate the horrors of what she was going through, using exclamation marks, underlining the text and excessive usage of the bold function is unnecessary. She has to trust herlegal representative to submit on the facts that she has presented. She has to trust that the judicial officer reading the affidavit appreciates the significant horror of a knife being held against one’sneck.
Hence, the “dos and don’ts” for the contents of an affidavit are:
1. state the facts and nothing else.
2. state the date and place of the event or situation, if possible.
3. keep your sentences short and concise.
4. include relevant exhibits with clear explanations of their relevance in the body of the affidavit and with reference to the page number of the exhibit.
5. include personal opinion but clearly state that it is an opinion.
6. include matters based on the affiant’s information and belief but the source of the information and/or belief must be stated.
7. check your grammar and for clerical errors; whilst may be inconsequential to the issues at hand, these should be avoided as proper presentation is always of consequence.
8. comply with the basic formal requirements; a visually well presented affidavit makes it easier for the focus to be on the contents.
9. have a concluding paragraph summarising your position in the application; it re-focuses the judicial officer on the issues at hand and assists in the understanding of the evidence.
10. stop killing trees. A voluminous affidavit is not necessarily more effective in presenting the evidence.
1. write a graphic novel – simply put, just stick to the facts.
2. be trigger happy with the keys on your keyboard with excessive use of the bold function, underlining of text and use of punctuation marks such as exclamation marks or question marks.
3. include legal arguments or case law and precedents – those belong in a written submission.
4. repeat yourself and be verbose – long rambling sentences detract from the issues at hand.
5. stick pages and pages of faded supermarket receipts, taxi receipts etc with no explanation and no summary.
6. over use adjectives and display your wide range of vocabulary; you may be well read but your affidavit does not need flowery exaggerated language.
7. pretend to be someone your affiant is not; if he says his wife suffers from depression, say this is his belief but do not say that it is a fact that she is suffering from clinical depression, that she is also exhibitingsymptoms consistent with being bipolar etc – he is not her attending psychiatrist.
8. use words that the affiant would not use or say; if she has a problem managing her teenage daughter tell it like it is but don’t put words in the affiant’s mouth, example, “I am unable to manage my highly strung emotionally stressed and distressed daughter in the throes of teenage angst”.
9. take this as an opportunity for an outpouring of your grievances against the opponent or venting about his lies and womanising etc - use a blog, keep a diary – don’t write it down in your affidavit.
10. kill trees – you don’t score more points in court hearings because you have more pages of
receipts or more paragraphs in your affidavit than your opponent.
If we can remember these simple rules, the affidavit would be what it is meant to be – a clear concise
statement of facts by an affiant, drafted based on his personal knowledge or premised on his belief from
a source document, made under oath, and, filed as his evidence in support of an application.
Jen Koh
District Judge
Family and Juvenile Court