“Gone Fishing” - Setting aside a Subpoena Duces Tecum
Being faced with a subpoena duces tecum can be daunting. The recipient often feels as if the only two options available to them are to either comply with the request (in whatever form it is presented), or face imprisonment in the alternative. This article, however, seeks to explore different approaches to challenging a subpoena, all of which can be considered before the recipient ultimately decides to comply with the request, and if so, in what manner.
As a first port of call, one could consider whether the subpoena constitutes an “abuse of process” and challenge it accordingly. This can be done by bringing an application in to have the subpoena set aside in terms of Section 36(5)(c) of the Superior Courts Act, No. 10 of 2013. The onus of proof in respect of establishing that the subpoena amounts to an abuse of court process will be on the party approaching the court to have it set aside.
The aforesaid was dealt with in the notable case of Beinash v Wixley 1997 (3) SA 721 (SCA), wherein the Court held that the documents requested in a subpoena must be identified with sufficient certainty. This is so as to avoid the subpoenaed witness being placed in the uncomfortable, and dangerous position of being forced to comply with a request amounting to nothing more than a “fishing expedition”, failing which they would face arrest and/or imprisonment. In respect hereof, the Court further reiterated that what constitutes an “abuse of process” is to be determined by the circumstances of each case and the composition of the requests contained in the subpoena. The reasoning set out Beinash has become the high water mark for subpoenas, and was subsequently applied in a further key judgment on the topic, Laskarides and Another v German Tyre Centre (Pty) Ltd 2010 (1). SA 390 (W), where the Court set aside a subpoena for not describing the documents sought with sufficient certainty.
A secondary approach would be to consider whether the documents requested by the subpoena are relevant to the underlying legal process. Even though Rule 38(1) of the Uniform Rules of Court does not expressly deal with relevance as it relates to subpoenas, the Court in the case of Meyers v Marcus and Another 2004 (5) SA 315 (C), developed the common law in this regard and dealt with the setting aside of a subpoena on the alleged grounds of irrelevance.
It should be noted that, generally, the aforesaid claim of a subpoena seeking irrelevant documents would be articulated as an “abuse of process” as per s36(5)(c) of the Superior Courts Act. In respect hereof, however, the Court in Meyers notably distinguished between “irrelevance” and “abuse of process” and held that although these two issues are possibly interrelated, they are separate and distinct. Ultimately, and in applying a measure of caution, the Court entertained an objection to the subpoenas based on “irrelevance” and deemed the bulk of the subpoenas in question to be irrelevant to the main action.
A third, possibly lesser-known avenue, would be claiming that a breach of “confidentiality” or “privilege” would ensue, should the subpoena be complied with. In terms of Rule 38(1), it provides for the use of a subpoena, however, emphasises the exception of claiming privilege. In his commentary on the Rules, Erasmus submits that claiming privilege in such circumstances is only permissible in the following instances, namely: -
(i) the privilege against self- incrimination;
(ii) marital privilege;
(iii) statements made without prejudice;
(iv) legal professional privilege; and,
(v) disclosures injurious to the public interest.
What should be noted, however, is that commercially sensitive information is not generally considered to fall under the ambit of any of the aforementioned categories, as was tested in the case of Trust Sentrum (Kaapstad) v Zevenberg & Another 1989 (1) SA 145. Consequently, commercially sensitive information is not protected under privilege and would generally be subject to judicial scrutiny, if not protected by any of the other mechanisms discussed hereunder.
The fourth and final approach, being a sub-genre of the aforesaid notion of “privilege”, would be to claim that the disclosures requested by the subpoena are in conflict with the general right not to incriminate oneself. This right is provided for by Section 35(3) of the Constitution and Section 203 of the Criminal Procedure Act, No. 51 of 1977, respectively. Although the right or privilege not to incriminate oneself is usually reserved for discussion in respect of criminal law, it does find application in the civil context.
In respect of the aforesaid, Section 417(2)(b) of the “old” Companies Act provided for the waiver of the privilege against self-incrimination. To this end, it provided that any “incriminating information” gathered during any interrogations convened under the section, could subsequently be used as evidence against him/her in a criminal case. Needless to say, the provision was subsequently found to be in conflict with Section 35 of the Constitution and could not be reasoned as a justified limitation of rights in terms of Section 36 of the Constitution, both of which being detailed in the case of Ferreira v Levin N.O & Others and ORS 1996 (I) SA 984 (CC).
Not being the end of the road, Section 417 was then further interrogated by the Constitutional Court in the landmark judgment of Bernstein & Others v. Bester & Others NNO 1996 (2) SA 751 (CC), where the Court held that with a reading in of a right of an interrogated person to refuse to answer where he/she has “sufficient cause” for such refusal, the section was no longer to be considered unconstitutional bar-none. Furthermore, the Court reiterated the essential nature of the use of subpoenas for the functioning of the Court system, but nevertheless confirmed the Court’s power to set aside subpoenas which have been issued for improper purpose, or which are vexatious in other respects.
In the recent judgment of Moodley N.O and Others v Public Investment Corporation SOC Limited and Others (2023) ZAWCHC 49, handed down by Justice Binns-Ward on 9 March, the aforesaid approaches were gauged, and the subpoenas in question were argued to be too broad, not specific enough and moreover, were irrelevant to the underlying legal process. Notwithstanding the fact that the Court noted the importance of being cautious with upholding applications to set aside subpoenas, the Court nevertheless found in favour of the Applicants, yet again emphasising that there is no need to have fear in the face of a subpoena and that these mechanisms can be dealt with systematically.