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Rule 26: Subpoena, interrogatories and commission de bene esse B26.2 Registrar or clerk of the court one or more subpoenas

B26.3 Evidence of any person is to be taken on commission before any Commissioner within the Republic

B26.4 Has in his or her possession or control any deed, instrument, writing or thing which the party requiring his or her attendance desires to be produced in evidence

B26.5 The court may set aside service of any subpoena

Rule 26

(1) Any party desiring the attendance of any person to give evidence at a trial, may as of right, without any prior proceeding whatsoever, sue out from the office of the registrar or clerk of the court one or more subpoenas

for that purpose, each of which subpoena shall contain the names of not more than four persons, and the service thereof upon any person therein named shall be effected by the sheriff in the manner prescribed by rule 9, and the process of subpoenaing such witness shall correspond substantially to Form 24.

(2) (a) Where the evidence of any person is to be taken on commission before any Commissioner within the Republic, such person may be subpoenaed to appear before such commissioner to give evidence as if at the trial.

(b) In the case of evidence taken on commission, such process shall be sued out by the party desiring the attendance of the witness and shall be issued by the Commissioner.

(3) If any witness has in his or her possession or control any deed, instrument, writing or thing which the party requiring his or her attendance desires to be produced in evidence, the subpoena shall specify such document or thing and require him or her to produce it to the court at the trial.

(4) There shall be handed to the sheriff together with a subpoena so many copies thereof as there are witnesses to be summoned and also the sum of money that the party for whom they are to be summoned considers that the sheriff shall pay or offer to the said witnesses for their conduct money.

(5) The court may set aside service of any subpoena if it appears that the witness was not given reasonable time to enable him or her to appear in pursuance of the subpoena.

Discussion of rule 26

B26.2 Registrar or clerk of the court one or more subpoenas The power to permit the issue of a subpoena is derived from the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944, section 51) and the rule gives a party who desires the attendance of someone to give evidence or to produce a document or thing at a trial, the power, as of right, to sue out from the office of the registrar one or more subpoenas for that purpose in accordance with the form prescribed by the rules.

There are six principles involved:

(a) the duty to give evidence resting upon the public;

(b) the element of sacrifice which is due from every member of the community; (c) society as a whole has a right to the evidence;

(d) exemptions from giving evidence are limited; (e) witnesses ought to be accommodated; and (f) witnesses are equal.

B26.3 Evidence of any person is to be taken on commission before any Commissioner within the Republic

Evidence on commission can be taken within the Republic or beyond its borders. It must appear that the taking of evidence on commission is “convenient or necessary for the purposes of justice”. The words are disjunctive and form a jurisdictional fact. In addition, or as part of the requirement, the evidence must be relevant to an issue in dispute. In considering the application, the court exercises a discretion and the following questions may have to be considered:  How material (as distinct from merely being relevant) is the evidence? Materiality may range from crucial to

peripheral.

 How substantial are the prospects that the evidence would indeed be forthcoming if the commission is authorised? An assessment of this issue could depend on whether the witness concerned would be compellable; whether the commission would be held within the country; whether the witness will have valid grounds on which he could refuse to testify; and whether he has committed himself to giving such evidence.  Has the party seeking the order to adduce the evidence on commission acted with proper diligence in pursuing

alternative remedies (short of the order sought) that might reasonably have been available to it?

 Is the commission being sought on bona fide grounds to advance a legitimate case or is there reason to suspect that it is a tactical stratagem designed to secure some unfair delay or other illegitimate advantage?

 How convenient and expensive will the proposed hearing before the commission be? This in itself is a relative inquiry.

 Where is the balance of prejudice?

 What would the relative importance have been for the trial court itself to see and hear the particular witness? Where the attendance of a witness cannot be enforced, the court will as a rule allow the evidence to be taken on commission unless it appears that the other side is likely to be prejudiced thereby or that a miscarriage of justice may result. The court may exercise its discretion not only in respect of formal evidence but also in relation to contentious issues. It must, however, be satisfied that the evidence is material and further that the person is unwilling or unable to attend or give evidence in court.

B26.4 Has in his or her possession or control any deed, instrument, writing or thing which the party requiring his or her attendance desires to be produced in evidence

The subpoena issued in this regard is known as a subpoena duces tecum.

A witness who has been subpoenaed merely to produce documents need not be sworn. If, however, he is in addition required to identify the documents, he must be sworn and can then be cross-examined by the other party.

If the witness is, for instance, required to produce a deed, he must hand it over to the registrar as soon as possible (presumably on the day of the trial) unless he claims privilege. If he claims privilege, the court will first decide on the validity of his claim before he can be obliged to hand over the document. The parties to the litigation are entitled to inspect and make copies or transcriptions of the matter in the hands of the registrar and the subpoenaed witness is thereafter entitled to its return.

Rule 26 will exclude the provisions of PAIA after proceedings have been instituted. Reference to witness should be widely interpreted, and it is not required that a party intend to call a person as a witness and/or introduce a document into evidence for a subpoena duces tecum.

B26.5 The court may set aside service of any subpoena

The court may set aside service of any subpoena if it appears that the witness was not given reasonable time to enable him or her to appear in pursuance of the subpoena. The court may also set aside a subpoena if the subpoena amounts to an abuse of the process of the court. The setting aside can take place at any stage after issue of the subpoena and need not be decided by the trial court. Not only the person subject to the subpoena but also any other interested party may apply for the setting aside on the ground of abuse. Where documents can be obtained by a subpoena duces tecum, section 7(1) of the Promotion of Access to Information Act 2 of 2000 precludes a party from using the mechanisms provided by that Act in order to obtain the documents.