LEGAL c o n t .
What are the consequences of failing to respond to a
subpoena?
In the absence of a lawful excuse, it is a criminal offence to
disobey a subpoena and penalties may apply.
Magistrates Court
In the event that a witness has been duly subpoenaed and
without lawful excuse, fails to act in accordance with the
subpoena, the court may impose on the said person a fine not
exceeding R300 and in the event of a default of payment of
such fine then imprisonment for a period not exceeding three
months.
(See section 51(2)(a) of theMagistrates Court Act)
The court has discretion to hold liable any witness in default for
the costs of any postponement or adjournment occasioned by
same.
(See section 51(2)(d) of theMagistrates Court Act)
Superior Courts
In the event that a witness has been duly subpoenaed to
attend any proceedings as a witness or to produce any
document or thing and without lawful excuse fails to act in
accordance with the subpoena, the court concerned may
issue a warrant directing that he or she be arrested and
brought before the court at a time and place stated in the
warrant or as soon thereafter as possible.
(See section 35(2)
of the Superior CourtsAct)
Such a witness is guilty of an offence and liable upon
conviction to a fine or to imprisonment for a period not
exceeding three months. It is interesting to note that no
threshold is provided for the aforementioned fine.
(See section
35(4) of the Superior CourtsAct)
Are there any exceptions to the obligation to comply with
a subpoena?
Privilege
Privileged documents are expressly excluded from being
subpoenaed. If a witness alleges privilege the court must first
decide on the validity of the claim before requiring the
furnishing of documents.
(See rule 38(1)(b) of the Uniform
Rules and LexisNexis Commentary on rule 38(1))
Privilege applies to communications between client and a
legal advisor who is consulted in a professional capacity and in
confidence for the purpose of obtaining legal advice and not
with the intention of furthering a crime.
The concept of privilege is distinguished from the concept of
confidentiality in so far as privileged documents are
confidential. However, confidential documents are not
necessarily privileged.
Despite the fact that documents in the possession of an
auditor may be confidential, no privilege exists in
communications between an auditor and client. In this regard,
an auditor is unable to refuse compliance with a subpoena
predicated on an assertion of privilege.
Reasonable expenses
Prior to levelling any penalty for non-compliance with a
subpoena, the court must first be satisfied that a subpoenaed
witness has been paid or offered payment for reasonable
expenses concomitant with obeying the provisions of the
subpoena. Such expenses must be calculated in terms of the
tariff.
The courts have held that a witness is entitled to the
prepayment of his reasonable expenses and may refuse to
comply with the subpoena if that is not done.
In
Laskarides and Another v German Tyre Centre (Ply) Ltd
(In Liquidation) andOthers NO
2010 (1) SA390 (W) 2010 (1)
SA
the court considered the setting aside of a warrant of arrest
for failing to attend proceedings, where a subpoenaed witness
was neither paid nor offered reasonable expenses for the
production of a large amount of documents. The court held
that as no such prepayment had been tendered in the notice,
the witness was not obliged to attend interrogation and set
aside the warrant of arrest.
Reasonable notice
Acourt may set aside service of any subpoena if it appears that
the witness was not given reasonable time to enable himor her
to appear in court.
(See rule 26(5) of the Magistrates Court
Rules).
Vaguely described or not included in subpoena
A subpoena is required to specify a document or thing that is
desired to be produced in evidence. No person is bound to
produce any document or thing not specified or otherwise
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Issue 29 March - April 2015
