Carmichael-Brown v Liquid Telecommunications (Pty) Ltd

The applicant instituted action against the respondent in the Labour Court in December 2017, claiming damages arising from termination of a fixed term contract. The respondent delivered a notice of exception which was dismissed by Van Niekerk J on 27 March 2018, with costs on attorney and own client scale. On 6 April 2018, the respondent delivered a statement of response raising preliminary points including that no employment contract existed, res judicata, and lis alibi pendens. On 20 April 2018, before these preliminary points could be decided and before any pre-trial conference, the respondent caused a subpoena to be issued against the applicant requiring her and PSO Project Management (Pty) Ltd (of which she was co-owner) to preserve and produce documentation. The applicant applied to set aside the subpoena, alleging abuse of court process. The subpoena was issued against the applicant as a party/litigant rather than as a witness, and threatened her and the company with arrest and fine for non-compliance, without specifying a set down date for trial.

• Whether the subpoena issued against the applicant constituted an abuse of court process
• Whether it was necessary to cite the Registrar of the Labour Court in an application to set aside a subpoena
• Whether a subpoena can be issued against a party/litigant in proceedings rather than a witness
• Whether the subpoena procedure was the appropriate mechanism for obtaining documents as opposed to the discovery procedure provided in the Labour Court Rules
• Whether the subpoena complied with Form 3 and Rule 32 of the Labour Court Rules
• Whether costs should be awarded on an attorney and own client scale

The subpoena issued against the applicant on 20 April 2018 was set aside. The respondent was ordered to pay costs. The court did not grant costs on an attorney and own client scale as requested by the applicant.

In the Labour Court, where discovery procedures are available under Rule 6(4) and (9), a subpoena procedure under Rule 32 cannot be used to obtain documents from a party/litigant to the proceedings. The definition of 'a witness' in Rule 32 does not include a party/litigant in the action. The discovery procedure, which allows for pre-trial discussion and the opportunity to object through interlocutory applications, is the proper route for obtaining documentary evidence from opposing parties. A subpoena is primarily intended to secure production of material from persons who are not parties to the proceedings. The use of a subpoena against a litigant, particularly before pre-trial conference procedures have been followed and before preliminary issues have been determined, constitutes an abuse of court process. The Rules of the Labour Court must be strictly complied with as they are structured to facilitate case management in accordance with the principle that labour proceedings should be conducted with minimum legal formalities and speed.

The court observed that it was illogical for the respondent to seek documentary evidence through subpoena when it had raised special pleas (res judicata and lis pendens) which, if successful, would collapse the entire case. The court noted that the determination of what constitutes abuse of process depends on the circumstances of each case and has no precise definition, citing Mohammed CJ in Beinash v Wixley. The court also commented that the Registrar's responsibilities under section 155(2)(a) of the LRA are limited to the administrative functioning of the Court and nothing beyond that, and that the Registrar has no discretion as to whether a subpoena should be issued or not when approached by parties. The court observed that there was no evidence that the parties had attempted to engage in a pre-trial conference where the issue of discovery could have been discussed.

This case is significant in South African labour law as it clarifies the proper procedural mechanisms for obtaining documentary evidence in Labour Court proceedings. It establishes important boundaries between the discovery procedure and the subpoena procedure, emphasizing that subpoenas are primarily for obtaining evidence from non-parties, not from litigants themselves. The judgment reinforces the principle that Labour Court proceedings must be conducted with minimum legal formalities and speed, and that the specific Rules of the Labour Court must be strictly complied with to facilitate proper case management. The case also demonstrates the Labour Court's willingness to exercise its inherent power under section 173 of the Constitution to prevent abuse of court processes. It provides guidance on when the use of subpoenas may constitute procedural abuse, particularly when alternative and more appropriate procedures (such as discovery) are available and have not been exhausted.