People who have not studied law or have no prior knowledge of the law may be confused and uncertain when served with a legal document called a “subpoena” which states that they should attend and give evidence at a trial or that they should produce a document or thing. In this article, we will discuss aspects surrounding non-compliance, the setting aside of a subpoena, and relevant case law.
When an issued subpoena was duly served on you or any person, it is important to know that non-compliance therewith has serious consequences. Section 51 of the Magistrates’ Courts Act, 32 of 1944 (hereafter the “Act”) deals with penalties for non-attendance of witnesses and states in section 51(2)(a) that a court may impose a fine of not more than R300 and in default of payment, the person may be imprisoned for a period not exceeding three months irrespective whether the person subpoenaed resides within the jurisdiction of the court. The court may also issue a warrant of arrest should it be deemed necessary.
The above begs the question of whether there are circumstances in which the person served with a subpoena does not have to comply with the said subpoena. The short answer to the aforementioned question is yes and no.
Section 51(3) of the Act stipulates that when a subpoena is issued for either procuring a witness at trial or the production of a document or thing, the following circumstances warrant that the court may cancel the subpoena. These circumstances are: when it appears that the person is unable to do so; another person can produce the document or thing; or the compelling of the witness’s attendance would be an abuse of process. The court may then make an order cancelling the subpoena on reasonable notice to the party who issued the subpoena.
The Magistrates’ Court Rules, Rule 26(3)(b)(ii) and 26(3)(c)(ii) state that the person subpoenaed to produce a document or thing should produce same within 10 days from receipt of the subpoena unless such person claims privilege. Rule 26(5) furthermore states that the court may set aside service of any subpoena if it appears that the witness/person so served was not given reasonable time to enable them to appear in pursuance of the subpoena.
The factors mentioned above, as stipulated by the Act, and the rules set out the circumstances in which a court may set aside or cancel the subpoena. It is, however, important to note that the presence of these factors does not necessarily mean that you should not comply with the subpoena. Jones and Buckle address the factor of privilege and state that a bona fide claim of privilege does not entitle the person to not comply with the subpoena and the person must satisfy the clerk/registrar or the court that the claim of privilege is legally justified.
Therefore, the correct process to follow once a subpoena has been received would be that the person subpoenaed will, in the case of a subpoena for the production of documents or things, be required to produce same to the clerk/registrar. After or simultaneously with delivery, the person subpoenaed will have to bring an application by way of a Notice of Motion accompanied by a founding affidavit explaining why they have a valid objection to produce the documents or things. The aforementioned application will first have to be adjudicated by the court before the documents may be inspected and or used at the trial in the matter. Similarly, once a subpoena for giving oral evidence at trial has been received by a person, such person will need to, either prior to or at the hearing of the matter, bring an application to the court, explaining why the evidence is not relevant and asking for an order that the subpoena should be cancelled based on one or multiple of the grounds outlined above.
So, how is relevance determined and who bears the onus of proof in this case? In the case of Deltamune (Pty) Ltd v Tiger Brands Limited [2022] (3) SA 339 (SCA) the Supreme Court of Appeal in its ruling stated that subpoenas should only be issued where it is absolutely necessary and when there is reasonable certainty that the documents requested are relevant. Furthermore, in the case of Antonsson and Others v Jackson and Others 2020 (3) SA 113 (WCC) the court adopted an approach where relevance should be interpreted very broadly by holding that documents or evidence may be relevant either when it directly or indirectly enables a party to prove or advance their case. The aforementioned may fall under the ground for abuse of process.
What is meant by the onus of proof? This means the party will need to prove to the court that the subpoena should be set aside or cancelled. In the case of South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) Ltd and Others 2007 (6) SA 628 (D) the court held that the person who wants to set aside the subpoena carries the burden of proof to demonstrate that the subpoena falls within one of the grounds outlined hereinbefore. The party further needs to argue that the subpoena’s objective is invasive, aims to harass, and or constitutes a fishing expedition.
These articles are merely a short oversight of aspects surrounding subpoenas and should parties be mindful of their purpose whilst balancing the gathering of evidence against individual interests and rights. Needless to say, the legal system, by the use of legislation and case law, offers a wide-encompassing framework for the use of subpoenas in legal proceedings.
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.