Subpoena duces tecum is a Latin term which means “you shall bring with you” and is a mechanism catered for in terms of South African common law. The South African rules of court allow a party to litigation proceedings to compel a witness to produce any deed, instrument, writing, thing or tape recording at trial by way of a subpoena duces tecum.
The recent case of Deltamune Proprietary Limited (“Deltamune”) and 13 Others v Tiger Brands Limited (“Tiger Brands”) and 2 Others (Case no 847/2020)  ZASCA 15 (4 February 2022), in which VDMA represented Deltamune and Aspirata Auditing Testing and Certification Proprietary Limited (the “Laboratories”), the Supreme Court of Appeal tested the requirements of a subpoena duces tecum and considered the true purpose thereof (“Deltamune Case”).
This article briefly sets out the court rules relating to subpoenas as well as the court’s approach to subpoenas in the Deltamune Case and the ruling on the true purpose of subpoena duces tecums.
The high court rules relating to subpoenas:
Rule 38 of the uniform rules of court regulates the procedure for the manner in which evidence may be procured by way of a subpoena.
A subpoena is issued by the registrar of the court and served on a witness by the sheriff of the court. The subpoena informs the witness of when and in which court to appear and on which party’s behalf it will be giving evidence. If a witness has in his possession or control a document which the party requiring his attendance desires to be produced in evidence, the subpoena must specify the document and require that the document is produced to the court.
A witness who has been required to produce a document in terms of a subpoena duces tecum must hand the document over to the registrar of the court as soon as possible, unless the witness claims that he/she does not have any evidence to present, such document is privileged or such document has no relevance to the proceedings, in which event the witness may refuse to produce the Document. Once a document has been provided, the parties to the litigation proceedings may inspect such document and make copies or transcriptions thereof, after which the document will be returned to the witness.
A party may subpoena any witness, except when the court sets aside the subpoena on the basis that witness possesses no relevant evidence, and as a result of this, the presence of the witness or the documents are of no assistance to the court.
The Deltamune Case:
The Deltamune Case was instituted pursuant to the listeriosis outbreak in South Africa between January 2017 and September 2018 which caused numerous people to contract listeriosis resulting from the consumption of contaminated ready-to-eat meat products produced by Tiger Brands.
On 3 December 2018 the high court authorised a class action against Tiger Brands for damages allegedly suffered as a result of the listeriosis infections. Tiger Brands defended the class action and denied liability. Subsequent to this, Tiger Brands issued subpoenas duces tecum to the Laboratories and others, which subpoenas required the recipients of the subpoenas to produce numerous documents, items and things in respect of test results for listeriosis.
The Laboratories objected to the subpoenas on the following grounds –
- The documents were not relevant to the issues arising in the class action;
- The breadth of the requests constituted an abuse of the court process;
- The subpoenas amounted to a “fishing expedition”; and
- The information requested in the subpoenas was confidential and private.
Following such objection Tiger Brands conceded that its subpoenas were too wide ranging and amended the subpoenas to reduce the ambit of the documents requested. The court thereafter accepted the amended subpoenas and granted Tiger Brands its application to compel the Laboratories to deliver the requested documents to the registrar of the court.
The Laboratories thereafter appealed the high court’s ruling to the supreme court of appeal and contended that the subpoenas should have been set aside in their entirety on the following grounds:
- the subpoenas were not relevant to the class action;
- the subpoenas remained too wide in ambit; and
- the subpoenas were not sufficiently specific.
The subpoenas required the Laboratories and others to deliver communication concerning listeria in general, inclusive of those species of listeria which do not cause illness in humans and including information regarding those products manufactured by meat processing facilities other than Tiger Brands’ Polokwane facility. The Tiger Brands’ Polokwane facility being the only ready-to-eat meat producing facility relevant to the class action.
The court found the disclosure of the material relating to the harmless species of listeria to be irrelevant to the class action, as the plaintiffs in the class action had only suffered harm or damage as a result of the harmful species of listeria.
The court also found the request for information relating to the other meat processing facilities to be irrelevant to the class action, as the plaintiffs to the class action are not required to allege or prove that the Tiger Brands is the only source of the listeriosis outbreak and resultingly Tiger Brands would not be required to dispute such an allegation. The court found that there was no merit in Tiger Brand’s assertion that there is a need to obtain evidence to establish whether there were other sources of contamination and saw this as an attempt by Tiger Brands to assign co-liability on a third party, which is not the purpose of a subpoena duces tecum.
The purpose of a subpoena duces tecum is to compel a witness to produce any deed, instrument, writing, thing or tape recording at trial which is relevant to the proceedings, not to embark on a “fishing expedition” in the hope of assigning co-liability on a third party.
The court also considered the specificity of the subpoena against the National Institute of Communicable Diseases and found that it was not sufficiently specific as it requested non-specific and generic information. The wording of the language used in the subpoena was overly vague and generalised, and in some cases, manifestly uncertain which left it to the National Institute of Communicable Diseases to determine which documents would need to be produced.
The Court concluded that for, inter alia, the reasons set out above that the parties against which the subpoenas were issued would be unable to be of any assistance to the court in determining the issues in the class action and therefore set aside the subpoenas in their entirety.
Subpoenas and subpoenas duces tecum are useful tools in litigation to require witnesses to testify in court and/or produce documents, items or things which are in their control or possession.
Parties to litigation proceedings must therefore issue subpoenas in accordance with the court rules, ensure that the documents sought by way of the subpoenas are relevant to the issue at hand, and subpoenas are not too wide in ambit and are sufficiently specific. Failing which, the court may set aside the subpoena on the basis that it would not be of any assistance to the court and/or is not in line with its true purpose.
VDMA’s team of experts is at your disposal for any dispute resolution or litigation assistance that you or your business may require.