WHY does the law have such an obsession about gender? A stupid question perhaps, but one I found myself asking the other day as I read court papers in which – as usual – everyone identified themselves in their affidavits according to whether they were male or female.

How far does this go, I wondered. Would you be disqualified in some way if you didn’t supply this information? Might there be an ethical/political reason for refusing, in the same way as many people conscientiously object to categorising themselves by race? Would you be obliged to declare the fact if you were transgendered?

Once you start, there are many questions to ask, even if most people would regard it as a idle exercise. I was amazed however to discover that at the very time I was thinking about these issues last week, a judge had a related, real question to answer. She had to decide about an affidavit that raised a problem concerning the gender of the person who had signed it.

It was a routine matter for Judge Fayeeza Kathree-Setiloane: a bank asked for summary judgment. But in an interesting twist a crucial affidavit was signed by someone who described herself as a woman while the commissioner of oaths before whom the document was signed and attested, described the same person as a man. Did it matter?

In her decision the judge noted that courts regularly faced situations in which the person who signed a document declared she was ‘a female’, while the commissioner of oaths certified in effect that the person was ‘a male’, saying ‘he’ understood the contents of the declaration.

Courts often overlooked this discrepancy excusing it as an administrative error by the commissioner.

But in this case, Absa v Botha NO, the defendants were not willing for her to overlook the error and lodged an objection to the affidavit itself.

When someone asks for summary judgment the courts have to be very careful: it’s a mechanism allowing a final judgment or an order to be granted even in a defended action without full pleadings or a trial. All the proper procedures must be followed to protect those involved.

Key in the process is a ‘verifying affidavit’, signed by whoever brings the application – a bank, for example. If there was such a basic discrepancy over whether the person who signed this crucial document was male or female could the court rely on the document at all? Had the commissioner even seen the person who signed it?

Lawyers on the other side argued it was an error of no consequence: the Interpretation Act effectively said ‘he’ meant ‘she’. O no, said the judge: applying the Interpretation Act to this case would simply mean the commissioner had to ensure that all the formalities surrounding the signing and attesting of the affidavit were observed whether the person signing was a ‘he’ or a ‘she’. The commissioner still had to use the correct pronoun to indicate the gender of the person signing.

In this case it was unclear to the court whether a male or a female person had signed and the court could not make any presumptions about the affidavit being valid.

Anyone asking for summary judgment had to carry the burden of proof and had to demonstrate that the affidavit met the required standards and it was a basic requirement that an affidavit had to be signed in the presence of a commissioner of oaths.

There was doubt whether this had happened here however since the person who signed ‘unambiguously describes herself as a ‘manageress’, which undeniably means that she is a female’, while the commissioner certified that the person who signed the document in his presence was a male. ‘Clearly this could not be the deponent.’

Perhaps the commissioner was mistaken, said the judge, but that was not the case argued by Absa, whose lawyers simply said the discrepancy didn’t matter. Nor was the court given any supporting affidavit by the commissioner himself or by the person who signed the document. These omissions justified the court in concluding that the affidavit was not in fact signed in the presence of the commissioner.

The court ‘should not be placed in a situation where it is required to speculate as to the gender’ of the person signing an affidavit nor whether an affidavit was in fact sworn to and signed in the presence of the commissioner.

The application for summary judgment was irregular, she ruled, and had to be set aside, with a costs order.

Absa v Botha