Valerie Carmichael-Brown (hereinafter “the Applicant”) approached the Court in order to have a subpoena issued against her, by Liquid Telecommunications (Pty) Ltd (hereinafter “the Respondent”), set aside on the basis that the Respondents had abused court processes in respect of issuing same. The cause of action in said case arose in 2017 where the Applicant instituted a claim for damages against the Respondent, as a result of a termination of a fixed term contract, which the Applicant avers existed between the parties.
The Respondent vehemently denied said allegations and delivered a notice of exception wherein numerous grounds were raised. The Court consequently dismissed same with costs. Subsequent to to the above, in April 2018, the Respondent delivered a statement of response, containing, inter alia, three preliminary points. They raised the notions of lis pendens and res judicata, which both have the cumulative effect of barring the continuation of proceedings.
Prior to the Court’s decision on the 3 preliminary points above, the Respondent approached the Registrar in order to issue a subpoena against the Applicant. Further, the Respondent submitted that the application was defective in the sense that the Applicant had failed to correctly cite the Registrar of the Court who issued the subpoena. The Court, on this point, makes the administrative functions of the a Registrar issuing a subpoena abundantly clear by reciting section 155 2(a) of the Labour Relations Act which details that the Registrar has no discretion in deciding, on the merits, whether a subpoena should be issued or not, the Registrar’s function is solely administrative.
Further to the above, the subpoena was issued against the Applicant who is a litigant in the main case, however, the company PSO Project Management (Pty) Ltd (hereinafter “PSO”), a juristic person, was not nominated, it merely stated that the Applicant was a co-owner, yet none of the other co-owners were cited and a set down date for trial was not specified therein. Pursuant to the wording of said subpoena the Applicant and PSO were threatened with serious consequences of arrest and/or a fine, should they not comply.
In light of the above, the Applicant makes the following submissions:
1. The Subpoena does not comply with Form 3;
2. The Subpoena only nominates her as a witness and not the company – yet directs the company to preserve documents therein; and
3. The Subpoena does not stipulate that the witnesses identified are to remain in attendance at court.
In light of the Applicant’s submissions above, the Applicant contends that the next immediate step which the Respondent should of utilised was the discovery procedure in accordance with Rule 6(9) of the Rules of Court. The Applicant maintians that the Respondent’s aim in issuing a subpoena was intended solely to harass her into producing tax and financial sensitive documentation without the Respondents intending to call her as a witness to testify thereon.
There are two ways used in practise to secure documents in Court, to go by way of the discovery procedure, or the subpoena procedure. The Respondents argued that they used the correct step in issuing the subpoena because it “advanced their case and led to the active pursuance of truth”.
The Court considered precedent in determining whether there was an abuse of court processes on the part of the Respondents in following the subpoena route. The main authority relied upon was Beinash which held that there is no precise definition of abuse of process. Further, that the purpose of discovery is to enable a litigant to discover documents in possession of its opponent.
The Court ultimately decides whether discovery should be made or not, which in turn indicates that the party objecting to discovery has an opportunity to present its case in resisting the discovery of such materials. A subpoena however, is used to secure production of material from persons who are not necessary parties in the main application. The subpoena route does not provide a party with the opportunity to contest the subpoenaed material, and further, specifically states the word “witness” instead of “any persion”. The Applicant to the present case, it must be remembered, is a party to the litigation proceedings and not a witness.
The Court also cited Mogwele Waste which it used to emphasise that litigation in the Labour Court should be conducted in a speedy manner with as minimum legal formalities as possible. Further, the Court in the present case reiterated that Rules specific to the particular court wherein a matter is heard must be strictly adhered to, with the guidance of the Constitiution in developing the law in the interest of justice. As such, Rule 6 states that the discovery process is the one which a litigant, either the Applicant or the Respondent, has to follow in order to obtain certain material, only if same is intended to be used during trial.
The Court held that the correct process that should have been employed by the Respondents was the discovery procedure as opposed to issuing a subpoena. The reasons the Court put forth were due to the fact that subpoenad material should have been dealt with during the pre-trial, and no legitimate reason had been conveyed by the Respondent as to why the discovery route was not utilised in order to “advance its case and pursue the truth”.
Further to the above, the subpoena was issued against the Applicant who was a party to proceedings and not, for all intents and purposes classified as a witness, and the company (a jurisitic person) was not cited, nor were any of the other co-owners, as the subpoena had only cited the Applicant as co-owner. Lastly, the Court emphasised notions of the audi alteram partem rule within which beared relevance to the discovery process, whereby the Applicant could have provided a defence to the request for documents during the discover process. The audi alteram partem rule is of great importance here as the subpoena threatened the Applicant with arrest and/or a fine, without the opportunity to raise any valid defence.
In light of the above, the Court drew an inference that the Respondent, in issuing a subpoena instead of following the discovery process to secure sensitive documentation, constituted an abuse of court process in the issuing of a subpoena. The subpoena was set aside with costs.
There is no precise definition for what constitutes an “abuse of court processes”, and such determination must be based on the circumstances of each case together with the practices and rules of each specific court, in the interests of justice.
Written by Divina Naidoo and supervised by Charlotte Clarke, 07 February 2019
 Act 66 of 1995 as amended.
 2017 (4) BCLR 445 (CC) at para 21.
 (2016) 37 ILJ 2051 (LAC).
 Rule 6(4) ultimately form part of pre-trial procedures, however through generous and purposive interpretation it will extend the holder with optimal protection they may require.
 Rule 6(9) and Rule 32 of LAC.