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[2008] ZAWCHC 307
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MTN (Pty) Ltd v Road Accident Fund and Another (14474/2008) [2008] ZAWCHC 307 (1 December 2008)
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
14474/2008
DATE:
1
DECEMBER
2008
In
the matter between:
MTN
(PTY) LIMITED
Applicant
and
THE
ROAD ACCIDENT FUND
1
st
Respondent
JODI
BERMEISTER
2
nd
Respondent
JUDGMENT
GAUNTLETT,
AJ:
This
is an application to set aside a subpoena.
The
subpoena was issued and served on the applicant ("MTN") on
Friday 5 September 2008, one court day
before
the commencement of the trial action for damages by the second
respondent against the first respondent ("the
RAF"). The
applicant is a mobife telecommunications provider listed on
Johannesburg Stock Exchange and the first respondent
("the
RAF
â
)
is a statutory parastatal entity. The subpoena was directed to "The
Manager/Director'' of MTN; it was in its terms both
a subpoena
duces
tecum
(in
relation to cellular telephone records of the second respondent, the
plaintiff in an action against the RAF, and a number
of listed
corporate entities in which it was suggested she had an interest),
and a subpoena to attend the trial to testify.
The
subpoena was the second of its kind, but in slightly wider terms
than an earlier variant, issued on 25 August 2008 and withdrawn
on 4
September 2008. The withdrawal had followed telephonic discussions
between MTN and the RAF's attorneys, and in a letter
dated 1
September from the latter to the former. The letter drew attention
to constraints imposed by law on MTN's ability to
provide customer
records, by specific reference to MTN's license, the
Electronic
Communications Act, 36 of 2005
, and the Regulation of Interception
of Communications and Provision of Communication - related
Information Act, 70 of 2002. The
letter concluded:
"The
contravention carries a heavy fine of not more than R5miilion in
[the] case of our client and up to R2 millon or a jail
term of not
more than 10 years in respect of our .... client's employees. Even
the taw enforcement agencies cannot easily obtain
the information
your client seeks without following the strict procedure contained
in various statutes.
in
the light of the explanation provided above we are instructed to
request your client to withdraw the subpoena formally with
in th re
e da ys fro m today. Should your client fail to do so our client
will launch an urgent application to set aside the
subpoena.
Furthermore our comments herein should not be made as an admission
of the validity of the subpoena or the service thereof.
We
await hearing from you urgently and our client's rights are hereby
fully reserved."
The
first subpoena was thereafter withdrawn. The RAF asserts in its
papers that this was not done by way of reaction to the telephonic
discussions, or the letter to which reference has been made. It is
not necessary to determine whether or not this is plausibly
so.
On
Friday 5 September there were two developments. The first is that it
became apparent that no judge could be aflocated for the
trial
action due to commence on Monday 8 September. This fact, it is
common cause, was not communicated to MTN's attorneys -whether
through their failure to respond to telephone messages allegedly
left for them by the RAF's attorneys', or by the RAF's attorneys'
failure in the circumstances to convey the information via fax or
e-mail once it was clear that MTN's attorneys could not be
reached
telephonically.
The
second development was that the subpoena in issue now was issued and
served that day.
MTN's
attorney flew to Cape Town in response on Monday 8 September. MTN
launched and served an urgent application on that day
to set aside
the subpoena on several grounds. These included its contended
vagueness (as noted, it was addressed to "The
Manager/Director"
of MTN, which, as might be expected from a national
telecommunications operator and listed company, has
many who fit
that description); and furthermore it gave unreasonable notice,
especially in regard to the volume of information
which would be
required to be extracted and collated and the need to comply
simultaneously with the legal limitations on disclosure
to which I
have referred.
When
no judge was forthcoming on Monday 8 September to deal with the
application or the trial pending between the second respondent
and
the RAF, by consent the present application to set aside the
subpoena was postponed to today, with directions as to the filing
of
papers and argument.
The
RAF responded to the founding papers - short and to the point - with
some 180 pages of answering affidavits and annexures.
Little of all
this is remotely relevant to three basic issues. The first is
whether the subpoena is valid on its face, regard
being had to the
various grounds of attack specified in the founding affidavit. The
second is whether it in any event unenforceable
in the absence of a
tender of witness fees. The third, most simply, is whether an
unreasonable period of time was allowed for
the extraction of the
documentation and for the various legal hurdles relating to
disclosure to be addressed.
Ultimately
in oral argument today counsel for the RAF conceded that the time
allowed to respond to the subpoena was "inherently
unreasonable". The concession was correctly made, ft should
however have been made, forthrightly, in the answering affidavits,
or at least the heads of argument. Instead the former are replete
with its relevancies to the central issues, personalised
skirmishing, and the most irresponsible burdening of the record. The
heads of argument filed for the RAF equally failed to grasp
the
nettie of unreasonably short notice; it is unfortunate that it
should only have been in the course of oral argument that
the most
obvious fundamental in the case should have been recognised and
conceded.
Ultimately
conceding the inherent unreasonableness of the subpoena, counsel for
the RAF however argued that it was "not necessary'
1
for MTN to have responded to it. The argument was that,
notwithstanding the prior concession, the present application should
be dismissed and a punitive costs order made against MTN. It was
simply "unnecessary" - so counsel argued - for MTN
to have
instituted an urgent application on the morning of 8 September for
the subpoena to be set aside.
In
my view the argument lacks any responsible foundation. This is so
for several reasons.
In
the first place there is the fact of the conduct of the RAF's
attorney on 4 September in issuing the new subpoena in an, ex
confesso,
"inherently
unreasonable" timeframe. This was exacerbated by the failure
immediately thereafter to ensure that the subpoena,
once issued, was
immediately put in abeyance, when it became known (on the same day)
that the trial could not commence on 8 September.
When MTN
responded by engaging its attorney, an attorney in turn flew to Cape
Town and instituted, he had acted in my view
in a way which was
predictable. MTN was entitled to respond to a subpoena which
compeifed attendance to answer it, on pain of
criminal sanctions.
When
MTN's attorney had not replied to the telephone messages which it is
said were left for him, a simple step woufd have been
to e-mail or
fax him in the course of Friday 5 September to ensure that the
changed circumstances had been communicated.
In
the second place the argument that the response on 8 September was
"unnecessary" rests - counsef for the RAF confirmed
- on
the argument that a litigant confronted with a warrant, or a writ,
or a judgment, or a subpoena which he or she considers
invalid,
should ignore it. That, it seems to me, on the most elementary legal
principle and supported by the most trite authority
is not so. Even
arguably invalid legislative, executive or administrative acts may
have force until and unless set aside, There
is a continuing legal
debate regarding the question of degrees of invalidity (cf
Oudekraal
Estates (Ptv) Ltd v City of Cape Town
2004 (6) SA 222
(SCA)). Consequentially, a litigant -most of all a
litigant in pressed circumstances - may properly consider it prudent
to respond
(as after all, the subpoena on its orders it to do) by
ensuring that a legal representative is present to challenge the
validity
and enforcement of the particular subpoena. The converse
proposition - that the logic of MTN's conventions of invalidity of
the
subpoena means that it should have disregarded it - is risible
(cf
Oudekraal
supra
at
242B-C).
This
leads to the third aspect. The test is not - as counsel for the RAF
would have it in argument - whether a litigant ex
necessitate
must
go
to court to set aside a subpoena. The question is whether he or she
is
entitled
to
do so. Where a subpoena is patently unreasonable as regards what it
enjoins (as has ultimately been wrung in concession from
the RAF),
and otherwise defective, then that subpoena is an abuse, and it may
be set aside (cf
Pretoria
Portland Cement Co Ltd v Competition Commission
2003
(2) 385 (SCA) at 411B).
The
proper stance for the RAF on Monday 8 September was to have conceded
that the second subpoena was as issued on unreasonably
short notice,
relating as it did to considerable material which could not - the
RAF's attorneys had been reminded on 1 September
- without prior
compliance with a number of confidentiality constraints imposed by
law. It was also directed to a patently vague
subject ("the
Manager/Director"), and there was no accompanying tender of
witness fees (which, although not specified
by Rule 38 or s,30 of
Act 59 of 1959), is a trite requirement for enforcement:
Swart
v Cronje
1991 (4) SA 296
(T) at 299 A-E). In these circumstances, the
subpoena was as incompetent as the first. The RAF's attorney,
moreover, had the
opportunity to think further on the matter in the
ensuing two days, before the consent order was made on 10 September.
By then
the second respondent had provided under cover of an
affidavit the bulk of the documentation requested, or sought in the
subpoena
and available to her. in fact the RAF stance now is that
the subpoena is "now moot", and that the RAF, for its
part,
does not seek to enforce it against MTN. Yet it has persisted
in resisting the refief in this matter, fifing the discursive
affidavit
and annexures that I have referred to, and advancing today
an argument which in my view lacks any responsible foundation
whatsoever.
The
RAF has compounded matters by lodging an extensive application for
the striking out of passages from the replying affidavit.
I invited
counsel for the RAF at the outset to explain how this material
constituted new matter in the proper sense (and not
merely as
evidential or argumentative expansion upon the matter already to be
found in outline in the first set of affidavits),
and why it was
prejudicial, in the sense clearly laid down in
Bernash
v Wixley
.
It became apparent that neither aspect could adequately be
demonstrated, and counsel chose to curtail the exercise.
MTN
in its papers had intimated, too, an application to strike out. In
the event, however, that this was not lodged or argued,
and not time
taken up in oral debate by it, and I was merely invited to regard
certain criticised passages as irrelevant.
MTN
has asked for a special order as to costs. In my view, costs orders
of this kind shoutd be sparingly granted. I am however
persuaded
that in the circumstances of this particular matter the conduct of
the RAF in this Fit rg at ion has been unreasonable,
and markedly
so. Only in oral argument has the time allowed for compliance with
the subpoena, given its amplitude, and the legal
restraints on
confidentiality, been conceded to be wholly unreasonable. The
attempt still to defend the application on the basis
that it was
"not necessary" for the litigant threatened with criminal
sanctions to appear, has no responsible basis.
The attachments to
the answering affidavit were unnecessary in the extreme.
Whether
through point of pride, or professional antagonism, or simple
obduracy, unnecessary costs have been generated since 8
September,
notwithstanding the fact that on that day - it seems -the RAF itself
came to the conclusion that the subpoena was
"moot". The
scale on which paper has been generated in this matter, baseless
argument advanced, and this hearing necessitates,
are all
exacerbating features.
Although
both sides engaged two counsel the issues were anything but matters
warranting the costs of two counsel. Correctly no
claim was made in
this regard.
The
order I accordingly make is as follows:
That
the subpoena
duces
tecum
addressed
to the applicant dated 5 September 2008 be set aside;
The
application to strike out by the first respondent is dismissed;
In
relation to 1 and 2 above, the first respondent is directed to pay
costs on the scale of attorney and client.
GAUNLETT,
A J