Carmichael-Brown v Liquid Telecommunications (Pty) Ltd

The applicant instituted an action in the Labour Court claiming damages arising from the alleged unlawful termination of a fixed-term employment contract. The respondent initially raised an exception, which was dismissed with costs. Thereafter, the respondent delivered a statement of response raising preliminary pleas, including res judicata and lis alibi pendens. Before these preliminary points were adjudicated and before a pre-trial conference or discovery process had occurred, the respondent caused a subpoena to be issued against the applicant, requiring her (and indirectly a company of which she was a co-owner) to preserve and produce various financial and tax documents, under threat of arrest or fine. The applicant applied to have the subpoena set aside on the basis that it constituted an abuse of court process and did not comply with the Labour Court Rules.

The subpoena issued against the applicant on 20 April 2018 was set aside, and the respondent was ordered to pay the costs of the application.

This judgment clarifies the proper use of subpoenas in the Labour Court and affirms that subpoenas should not be used to circumvent discovery procedures or to harass litigants. It reinforces the principle that Labour Court litigation must follow its own rules, aimed at fairness, speed, and minimal formality, and confirms the Court’s inherent power to prevent abuse of its processes. The case is important for delineating the boundary between discovery and subpoena procedures in labour litigation.