LEGAL c o n t .
sufficiently described in the subpoena unless he or she
actually has it in court.
(See rule 26(3) of the Magistrates Court
Rules and section 36(4) of the Superior CourtsAct)
Regard must be had for the specificity in the identification of
documents required to be produced by a witness. In this
regard, a subpoena must be utilised in a
bona fide
manner and
not for the purposes of pursuing ends extraneous to the real
objectives sought. In
Beinash v Wixley
(457/95) [1997] ZA
SCA 32; 1997 (3) SA 721 (SCA); [1997] 2 All SA 241 (A); (27
March 1997) 2004 (5) SA 3 15 (C)
("Beinash"), as more fully
described below, the court held that certain circumstances
exist where the terms of a subpoena are so wide and
unspecific that same can constitute a form of harassment and
oppression.
Abuse of process
If it appears that:
(i) Awitness is unable to give any evidence or to produce any
document or thing which will be relevant to any issue in
such proceedings;
(ii) Such document or thing could properly be produced by
some other person; or
(iii) To compel him or her to attend proceedings will be an
abuse of the process of the court,
a judge is entitled to, after reasonable notice by the Registrar
to the party who sued out the subpoena, make an order
cancelling such subpoena.
(See section 36(5) of the Superior
CourtsAct and section 51(3) of theMagistrates Court Act)
An abuse of the process of the court occurs whenever an
attempt has been made to use the court process for ulterior
purposes. Notwithstanding the aforementioned, a court will
not lightly exercise its power to set aside a subpoena and the
onus of proof placed on an applicant is not an easy one to
discharge.
In Beinash, the court dealt with the question of whether a
person in receipt of a subpoena can challenge same
independently of the main action or if such a witness should
offer that objection during the trial when he or she is called
upon to comply with its demands. The court reasoned that the
hearing of the application to set aside a subpoena by another
court, other than the trial court, did not prejudice the applicant
seeking the subpoena, as there can be no doubt that every
court is entitled to protect itself and others against an abuse of
process. On this basis, the court held that the setting aside of a
subpoena can take place at any stage after the issue thereof
and need not be decided by the trial court.
In
Meyers v Marcus and Another
2004 (5) SA 315 (C)
an
application was brought to set aside a subpoena on the basis
that documents sought were said to be irrelevant to the issue
in the main action. The Court made reference to Beinash,
wherein it was stated that the establishment of an abuse of
process must be determined by the circumstances of each
case, the court held that when a subpoena is designed to
embarrass, intimidate and inconvenience a person, the only
inference to be drawn is one of an abuse of the process of
court. Predicated on this inference, the court ordered the
subpoena to be set aside.
Issue prior to trial date
In an application for leave to appeal, the court in
PFE
International Inc (BVI) and Others v Industrial
Development Corporation of South Africa Ltd'
(CCT
129/11) [2012] ZACC 21; 2013 (1) SA 1(CC); 2013 (1) BCLR
SS (CC) (27 September 2012) held that a subpoena may only
be issued after a trial date has been fixed.
The aforementioned court, in contrasting rule 38 of the
Uniform Rules with section 7(1)(c) of the Promotion of Access
to Information Act 2 of 2000 ("PAIA"), reasoned that when
procuring relevant documents, PAIA would apply before the
trial date is set, and rule 38 afterwards.
Conclusion
In circumstances where an auditor is served with a valid
subpoena, such an auditor will be obliged to furnish the
requested documents. If there are grounds to set aside the
subpoena for any of the reasons set out above, in those
circumstances, the auditor in receipt of the subpoena must
take steps to set aside the subpoena and not simply ignore it.
The subpoena remains a valid order of Court until set aside by
the Court or pursuant to an agreement being reached with the
issuer of the subpoena that the recipient has been excused
from complying with the subpoena.
If documents belonging or relating to a third party are
subpoenaed, that third party should be notified as soon as
possible in order to empower same to intervene if necessary. A
party whose documents have been subpoenaed may be in a
better position to raise an exception or an abuse of process
than an auditor.
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Issue 29 March - April 2015
