Navigating subpoenas in magistrates’ courts: part 1

People who have not studied law or have no prior knowledge of the law may be confused and uncertain when served with a legal document called a “subpoena”, which states that they should attend and give evidence at a trial or that they should produce a document or thing. This will be a two-part series on the discussion of subpoenas and this first article aims to discuss the different types of subpoenas one may receive and to elaborate thereon.

Rule 26 of the Magistrates’ Court Rules (the “Rules”) deals with subpoenas and distinguishes between two different types namely a subpoena in terms of Rule 26(1)(a) which is when a specific person is desired to give evidence at a trial of a matter instituted in the Magistrates Court. The second subpoena is called a subpoena duces tecum, which is issued in terms of Rule 26(3)(a) and is specifically to produce a document or thing which is believed to be in the possession or control of a person. A few important aspects regarding subpoenas will be discussed below.

The first important thing to know about subpoenas is the fact that the document must be handed to you or “served” on you by the Sheriff and may not be handed to you by a friend or by any other person not in their official capacity as Sheriff of the Court. Any service of a subpoena on yourself by a person not in their capacity as Sheriff will be void as such service will not comply with Rule 8.

The second noteworthy thing pertains to the structure of the subpoena handed to you. Rule 26(1)(b) states that to issue a subpoena for a person or witness to give evidence at trial, the document should substantially correspond with Form 24 of Annexure 1 of the Rules. Rule 26(3)(b)(i) states that to issue a subpoena for a document or thing to be produced, the document should substantially correspond with Form 24A of Annexure 1.

The most important noticeable difference between the aforementioned two forms is that Form 24 requires the stipulation of a trial date on which date the subpoenaed witness should personally appear before the court, whereas Form 24A merely requires that the person on who the subpoena is served is to deliver the document or thing to the clerk or registrar of the court within 10 court days of receipt thereof.

Pertaining to a subpoena duces tecum, Rules 26(3)(b)(ii) – (v) and 26(3)(c)(ii) – (v) states that the following process needs to be followed when a subpoena for a document or thing is served: the person subpoenaed should deliver the document to the registrar or clerk of the court within 10 court days from receipt thereof. The clerk/registrar may set conditions on how the document or thing may be inspected to ensure its protection.

The party who issued the subpoena must within five court days from the document or thing delivered to the clerk/registrar give notice to all other parties that the document or thing is available for inspection and or copying subject to the conditions imposed by the clerk/registrar. After the inspection and or copying of the document or thing, the person who produced the document is entitled to its return.

The abovementioned is a very different process than that of a subpoena for a witness as the Rules and the corresponding form merely require that the person personally appear at the trial on the specified date without mentioning any preliminary steps that need to be followed.

It is further important to note the wording of the Rules pertaining to the forms to be used in that it states that the subpoena documents only have to “substantially” correspond with the forms prescribed in Annexure 1 of the said Rules. This means that the contents of the subpoena do not need to be an exact replica of the specific form but should merely comply materially therewith and can be varied should the circumstances of the specific matter require it.

Essentially, the most important takeaway is that in order to issue a subpoena for a witness to personally give evidence, a trial date is required and therefore the party issuing the subpoena is required to ensure that the matter has progressed as far as having had the matter declared trial ready and having obtained a trial date at the specific court. The beforementioned position is, however, not required where a party wants to issue a subpoena to produce a document or thing as neither the Rules nor Form 24A refers to a trial date being required before the subpoena may be issued.

Therefore, a subpoena duces tecum may be issued at any time during litigation proceedings.

In Part 2 of this series, we will discuss what the consequences are when a person does not comply with a duly issued and served subpoena; on what grounds a person does not have to comply with a subpoena served on them; what the process is should you not want to comply and a short discussion on current case law.

Reference:

• Jones and Buckle Commentary

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