Deputy Chief Justice Raymond Zondo decided to take action against former president Jacob Zuma who left the Zondo Commission without permission November 20. Picture: Itumeleng English/African News Agency(ANA)
Deputy Chief Justice Raymond Zondo decided to take action against former president Jacob Zuma who left the Zondo Commission without permission November 20. Picture: Itumeleng English/African News Agency(ANA)

Securing a witness for court through a subpoena

By Opinion Time of article published Dec 3, 2020

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by Michael Bagraim

The news has been dominated by Deputy Chief Justice Raymond Zondo’s decision to take action against former president Jacob Zuma who left the Zondo Commission without permission November 20.

Justice Zondo said the enquiry will file a criminal complaint with the police.

“Any person summoned to attend and to give evidence before the Commission is required to do so” Justice Zondo said.

It is important for us to explore the various ways of securing witnesses at tribunals as this affects many of us who might get summoned or might wish to summon someone to give evidence in a case.

The most common way to secure the attendance of a witness is to subpoena.

It compels the witness to provide a court with information or documents on a specific date, time and location.

Should the witness not appear or produce the information, a harsh penalty may be issued by that court.

The first type of subpoena is one that requires the witness to produce documents relevant to a specific proceeding.

A different type of subpoena, and a person can get both, is for the person to appear in person and to give oral testimony.

When the subpoena asks for documents or items then you will tell the relevant prosecutor or attorney who requested the documents that you are willing to hand it over and will make arrangements to do so before the subpoena date.

These subpoena’s are issued by a court and are normally served by the Sheriff of the Court.

Subpoenas can be used for criminal, civil, professional conduct proceedings and even inquest proceedings. Subpoenas can’t be ignored as you risk being in contempt of court.

This happened with the particular case before Justice Zondo.

Individuals can receive reimbursements when they have to appear under a subpoena for reasonable travel costs, accommodation and even meal costs.

The amount is a nominal amount per day.

If you were a victim of a crime or a witness to one, you may be subpoenaed to the criminal court to describe what you witnessed.

Normally the lawyers involved do try and speak to you beforehand in order to ascertain what you are going to say under the subpoena.

Employers have to give you time off and can’t penalise you for the time off.

They can’t take any disciplinary action against you but they don’t need to pay.

It would be useful to speak to the lawyers about how long you will be there and when they actually require you.

It is always useful to bring the subpoena with you when you go to the court and to bring whatever documents are listed in the actual subpoena.

It should be known that you can challenge a subpoena by a certain process of objection.

It must also be properly served on you in terms of the rules of that particular court.

It is often a good idea to get some legal advice with regard to the subpoena as there might be confidentiality involved in the documents or the subpoena might be unfair or frivolous.

In our labour legislation we regularly use subpoena’s both at the CCMA and the Bargaining Councils for arbitrations.

This is also common practice at the Labour Court.

A subpoena is used in most cases where individuals are reluctant to appear.

Many individuals might still be working at the respondent company and might feel that their jobs would be in jeopardy if they voluntarily appeared on behalf of the dismissed individual.

There have been cases where a dismissed individual subpoenas the highest ranking employee in the business in order to be as difficult as possible.

The senior executive cannot just ignore the subpoena but would have to challenge it by explaining that he or she has no knowledge of the actual case.

I was involved in a series of arbitrations representing a large nationwide retail operation where each time the trade union tried to subpoena the CEO.

As is common practice, the CCMA will ask for reasons for the subpoena before issuing same.

Often the tribunals don’t go to the individual to ask them to either agree or to consider opposing the issuing of the subpoena.

This opposition normally comes only after the subpoena has been issued.

In terms of Section 142 of the Labour Relations Act a Commissioner has the power to issue a subpoena for an individual to appear before the CCMA.

In terms of the CCMA rules there is a list of requirements for the subpoena to be issued.

These subpoenas must be issued only after it has been signed by the Director of the CCMA.

The CCMA may refuse to issue the subpoena if they believe that the motivation for the issuance is not strong enough.

The person wanting the subpoena issued must explain why the witness will be valuable for his or her case.

The subpoena can be set aside by the Labour Court which would have to be brought on an urgent basis.

This will be done if the individual can explain that the subpoena is merely brought as a nuisance factor only.

If an individual refuses to obey the subpoena and does not appear at the arbitration, then the Commissioner might hold that individual in contempt and refer the matter to the Labour Court.

In turn, the Labour Court will subpoena that individual to appear in front of the Labour Court.

* Michael Bagraim is the DA's deputy spokesperson for Employment and Labour, and a labour lawyer.

** The views expressed here are not necessarily those of Independent Media.

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