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[2019] ZALCJHB 6
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Carmichael-Brown v Liquid Telecommunications (Pty) Ltd (JS987/17) [2019] ZALCJHB 6; [2019] 7 BLLR 696 (LC) (23 January 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JS987/17
In
the matter between:
VALERIE
CARMICHAEL-BROWN Applicant
and
LIQUID
TELECOMMUNICATIONS (PTY)
LTD Respondent
Heard:
07 December 2018
Delivered:
23 January 2019
Summary:
Setting aside of the Subpoena
JUDGMENT
MABASO,
AJ
Introduction:
[1]
The applicant delivered an application to set aside a subpoena issued
against her at the instance of the respondent as she opines
that this
step constitutes an abuse of Court’s processes. The applicant
also prays that the respondent be ordered to pay
costs on an attorney
and own client scale. The respondent opposes this application.
[2] In December 2017, the
applicant instituted an action against the respondent in this Court
claiming damages that she allegedly
suffered as a result of
termination of a fixed term contract that she avers existed between
the parties. The respondent delivered
a notice of exception raising a
number of grounds
[1]
which was
argued before Van Niekerk J who on 27 March 2018 consequently
dismissed same and ordered the respondent to pay costs
on an attorney
and own client scale.
[2]
On 06
April 2018, the respondent delivered a statement of response wherein
it raised preliminary points such as that: there was
no employment
contract that existed between the parties, pleas of
res
judicata
,
and
lis
alibi pendens
.
These two latter pleas are generally referred to as pleas in bar, and
if argued succesfully, they bar continuation of the case
as the
res
judicata
plea destroys the cause of action and
lis
alibi pendens
postpones the cause of action. Before these preliminary points could
be decided, on 20 April 2018 the respondent approached the
Registrar
of this Court to issue a subpoena against the applicant.
[3]
The Respondent submitted that the application before this Court is
defective as the applicant has not cited the Registrar of
this Court
who issued the subpoena. I disagree with this submission, taking into
account that in terms of section 155 (2)(a) of
the Labour Relations
Act
[3]
(the LRA), the
Registrar’s responsibilities are the administrative functioning
of the Court and nothing beyond that. As common
knowledge, the
parties approach the Registrar for the issuing of a subpoena and she
has no discrection as to whether it should
be issued or not.
[4]
The subpoena partly reads:
“
INFORM the Applicant...who is
also the co-owner of PSO Project Management (Pty) Ltd…that
they are required to preserve the
following documentation and to
ensure that same be produced to the Court upon hearing of the matter,
which date will be determined
at a later stage and communicated to
PSO Project Management (Pty) Ltd:
…
AND INFORM the Applicant and PSO
Project Management (Pty) Ltd that it should on no account neglect to
comply with this subpoena
as it may render both the Applicant and PSO
Project Management (Pty) Ltd liable to a fine and/or arrest of the
owner of PSO Project
Management (PTY) LTD.”
Points that are of
paramount importance in the above excerpt: are that the subpoena was
issued against the applicant who is a litigant
in the main case,
PSO Project Management (Pty) Ltd is a juristic person
but not cited, it states that the applicant is a co-owner but the
other co-owner/s
are not cited and that there is no set down date for
trial specified. The applicant and
PSO Project
Management (Pty) Ltd are threatened with serious consequences of
arrest and fine.
[5]
The applicant in support of this application, makes a number of
submissions. Firstly that the subpoena does not comply with
Form
3,
[4]
secondly that the
subpoena only nominates her as a witness and not the company yet the
company is directed to preserve documents
listed therein and
threatened with criminal liability, thirdly, the subpoena does not
stipulate that the witnesses identified are
to remain in attendance
to testify on behalf of any party and to remain in attendance until
excused by the court. She contends
further that the subpoena is “
only
to obtain documentation without the person producing the
documentation been reported in the witness box to identify the
documentation
and to testify about it. The aim is thus solely to
harass [her] to produce personal and confidential in the financial
and tax documentation
without the respondent even intending that
[she] be called as a witness to testify about it.”
The applicant further states that no reason has been provided for the
production of these documents, and that Rule 6(9) of the
Rules of
this Court provides for a discovery procedure available to the
respondent to obtain any such material from her. In essence,
with the
latter point, the applicant contends that in this case, the immediate
step that is available was for the respondent to
follow the route of
the discovery procedures.
[6]
Both representatives for the parties put their respective reliance on
the cases of
Beinash
v Wixley
[5]
and
Mogwele
Waste (Pty) Ltd v Brynard
[6]
respectively
.
I deal with relevant passages of these authorities below.
[7]
As the consideration in this matter is whether or not the respondent
in following the subpoena route is abusing the court’s
processes, one has to take into account what Mohammed CJ said in
Beinash
(and recently reiterated by the Constitutional Court in the judgment
of
Lawyers for Human Rights v Minister in the Presidency and others
),
[7]
where he held that
the determination as to what constitutes an abuse of process of the
court, needs to be based on the circumstances
of every case, meaning
there is no precise definition of abuse of process.
[8]
The respondent argued that it has used the correct step by making use
of the subpoena process in order to obtain the documents
to advance
its case and pursue the truth. There are two ways of securing
documents in this Court, first is the discovery procedure,
and the
other, the subpoena procedure. The purpose of the discovery
procedure, after delivery of a statement of response, is to
place
each party in a position to properly prepare for trial in order to
avoid unnecessary delays and suprises.
[9]
In
Mogwele
Waste
[8]
the Labour Appeal
Court (LAC) reiterated the principle that litigation in this Court
"
should
be conducted with minimum legal formalities and speed
".
[9]
This Court has its
own rules, which are not the same as the uniform rules. The point of
departure herein is section173
[10]
of the
Constitution
[11]
which provides
that:
“
The Constitutional Court,
Supreme Court of Appeal and High Courts have the inherent power to
protect and regulate their own process,
and to develop the common
law, taking into account the interests of justice.”
[10]
When an applicant, has delivered a statement of case, the respondent
is expected to deliver a statement of response. Once this
has been
done the Rules of this Court provide that a pre-trial conference
shall be held by the parties, and this must be done within
ten (10)
days after the delivery of the statement of response. In the
pre-trial minutes, the parties are expected to
inter alia,
attempt to reach a consensus on the following:
“
(vi)
discovery
and the exchange of documents
, and the preparation of
a paginated bundle of documentation in chronological order."
if
there is no agreement in the respect of discovery of documents,
either of the parties may use provisions of rule 6 which
reads thus
“
Discovery of documents
(6) (9) ...
(b) If the parties cannot reach an
agreement regarding the discovery of documents and tape recordings,
either party may apply to
the court for an appropriate order,
including an order as to costs. (the interlocutory application)
[11]
Mohammed CJ, in
Beinash
[12]
,
reiterated that the purpose of discovery is to enable a litigant to
discover documents in possession of its opponent.
[13]
The interlocutory
application, in terms of Rule 6(9)(b), gives the Court a discretion
to decide as to whether discovery should be
made or not, taking into
account the relevance of the disputed documentation in the case,
whether there are any legally recognised
grounds to refuse to
discover such material, and set a timeframe for doing that.
[14]
Since the court
has the discretion to decide as to whether the discovery of certain
documents is justifiable or not, the party objecting
to the discovery
has an opportunity to present his case in resisting the discovery of
such materials.
[15]
[12]
Whereas, Rule 32 provides that:
“
(1)Any party who requires
a
witness
to attend any proceedings to give evidence may have a
subpoena issued by the registrar for that purpose.
(2)A subpoena must comply with Form 3.
(3)If
a
witness
is required to
produce in evidence any document or thing in the witness’s
possession, the subpoena must specify the document
or thing to be
produced.”
[16]
[13]
The primary objective of a subpoena is to secure production of
material from persons who are not necessary parties in the main
application.
[17]
It is conspectus
that this rule specifically refer to “
a
witness”
instead of “
any
person
”
as compared to Rule 38 of the Uniform Rules. It must also be
remembered that the applicant is not a witness but a party
in this
litigation. The subpoena route does not give a party an opportunity
to contest subpoenaed material as compared to the discovery
process.
[14]
As I have mentioned above the proceedings in this Court have to be
conducted with minimum legal formalities and speedy resolution,
[18]
it is important to
emphasise that the Court Rules are structured in order to facilitate
management of cases within its jurisdiction.
[19]
[15]
In
casu
,
my view in respect of the Rules of this Court, taking into account
the interests of justice is that parties before this Court
are
required to strictly comply with provisions of the Rules as the Rules
are there to regulate the management of the matters in
this Court.
Rule
6 clearly
emphasises that what is required is that a litigant, either a
respondent or an applicant, will have to use the provisions of Rule
6(4) and (9) if there is material that has to be discovered if such
material is intended to be used during the trial. As the provisions
of sub-rule 6(4) form part of the pre-trial conference issues, it is
my view that this makes the provisions of Rule 6 (4) and (9)
to be in
line with “
generously
and purposively interpreted so as to give the holders of the right
the fullest protection they need”,
[20]
as the LAC in
Mogwele
Waste,
[21]
indicated that the
discovery process will give the other party an opportunity to object
if need be to the material that is intended
to be used. Under the
circumstances, I conclude that the right process that should have
been used by the respondent is the discovery
procedure as opposed to
the subpoena procedure. Meaning it should have dealt with the issue
of the subpoenaed material during the
pre-trial. No plausible reason
has been proffered by the respondent as to why it did not use the
discovery route in order “to
advance [its case] and pursue the
truth”.
[22]
[16]
Further, the subpoena is issued against the applicant, who is a party
in the main case and not against the company which is
a juristic
person and/or against all the owners of the company as the subpoena
states that the applicant is a co-owner. The applicant
is threatened
with arrest and/or fine without being given an opportunity to
properly raise any valid defence that she might want
to raise which
would have been a good opportunity had the discovery procedure been
followed. The subpoena was issued immediately
after the statement of
defence had been delivered and the dismissal of the respondent’s
exception, before the set down date
could be allocated.
[17]
In the statement of defence, the respondent has raised special pleas,
res judica and lis pendes
,
and if granted, the entire case of the applicant would collapse,
therefore it beggars belief why the respondent caused for the
subpoena to be issued before the special pleas are determined. In the
papers, there is no evidence that parties attempted to engage
in the
pre-trial conference whereby the issue of discovery would have been
discussed.
It is my view that, under the
circumstances, a subpoena in this Court cannot be issued against a
litigant if discovery processes
have to be followed. The way Rules
6(9) and 32 of the Rules of this Court are structured, the definition
of “
a witness”
does not include a party/litigant in an action in question. The only
inference that I can draw is that the respondent was abusing
the
court process and that the respondent was abusing the process of
subpoena.
[18]
Wherefore, I make the following order:
Order
1. The subpoena issued
against the applicant on 20 April 2018 is set aside.
2. The respondent is
ordered to pay costs.
___________
S. Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Adv JL Basson
Instructed
by: Alet Uys Attorneys
For
the Respondent: Adv Boda SC
Instructed
by: Cliffe Dekker Hofmeyr Inc
[1]
In terms of Rule 23 of Uniform rules.
[2]
Liquid Telecommunication (Pty) Ltd v Carmichael-Brown (JS987/17)
[2018] ZALCJHB 153;
[2018] 8 BLLR 804
(LC); (2018) 39 ILJ 1779 (LC)
(27 March 2018) ,
[3]
Act 66 of
1995 as amended.
[4]
Rule 32(2) of the Rules of the Labour Court (the Rules).
[5]
[1997] 2 All SA 241(A).
[6]
(2016) 37 ILJ 2051 (LAC),
[7]
2017 (4) BCLR 445
(CC) at para 21.
[8]
Supra
n 6 at para
19.
[9]
Ibid.
[10]
Read with section 159 of the same Act.
[11]
Act 108 of 1994.
[12]
Supra
n 5.
[13]
See also
Mogwele Waste
at paras 14 and 18.
[14]
Ibid, para 14.
[15]
Ibid, 16.
[16]
Court emphasis.
[17]
Ibid, at para 18 said “A subpoena
duces
tecum
is a mechanism
ordinary applied to obtain documentary evidence in possession of
non-parties.”
[18]
as espoused by section 3 of the LRA,
[19]
PFE International Inc (BVC)
and others v IDC of Sout
h
Africa
2013 (1) BCLR 55
(CC), paras 30: “Since the rules are
made for courts to facilitate the adjudication of cases, the
superior courts enjoy
the power to regulate their processes, taking
into account the interests of justice”, and 31.
[20]
Fn 19 above, at para 25.
[21]
At para 15.
[22]
Para 55 of the answering affidavit.