I’ve been subpoenaed – what now?

Understanding the subpoena process in South African law

Have you been summonsed to appear in court (subpoenaed) and give evidence in a trial? If so, you may be frightened, or at least a bit anxious. As lawyers, we attend court all the time. It’s a familiar environment for us. But we know that for the average citizen a courtroom can be intimidating. It may help to realise that the role of witness is critical in our justice system. In serious criminal cases, witness testimony can help to convict a criminal or acquit an innocent person wrongly charged. Less dramatically, subpoenas are common in civil cases such as divorce, child custody, personal injury, and commercial law. The subpoena (which means “under penalty”) is simply the name of the method used to call witnesses to court and ensure they attend. We explain the types of subpoena and the process you must follow if you are subpoenaed.

Types of subpoena

In South African law, in common with many other jurisdictions, there are two types of subpoena:

1. Subpoena ad testificandum
2. Subpoena duces tecum

The subpoena ad testificandum requires you to testify in a court case. For example, you may have witnessed a pedestrian being struck by a moving vehicle that ignored a red traffic light. You may be called to give evidence of what you witnessed either at the criminal trial for negligent driving or the civil trial for personal injury compensation (or both). You are not required to bring any documents with you; you are simply required to tell the court what you saw, in your own words. Taking the witness stand can feel daunting but remember you are not on trial. Your testimony will help the judge determine what happened and the culpability or otherwise of the defendant.

If you have been served with a subpoena duces tecum you are required to bring certain items with you for inspection by the court. “Duces tecum” means (in Latin) “you shall bring with you”. What you must bring is likely to be a document, e.g., insurance records, medical records, bank or income statements, etc., but may not be. Photographs, cell phones and storage information devices are also the subject of subpoenas. Often, if the subpoena requests documents or data, you do not have to appear in court; you only have to provide the subpoenaed information. But you should always check with your lawyer to be sure.

Who issues a subpoena?

A subpoena is issued by the clerk of the court on behalf of someone, usually an attorney, who needs your evidence as a witness to support their case. They could be acting on behalf of the prosecution (the state) or the defence in a criminal case. In a civil case they may represent the plaintiff (person bringing the action) or the defendant. 

Who serves a subpoena?

Issuing and serving a subpoena are two different processes. An attorney cannot serve you with a subpoena. This can only be done by a police officer or a sheriff. The attorney requesting the witness testimony or documentary evidence must provide all the details of the matter at hand, the parties involved, and the witness’s home or work address, for inclusion in the subpoena. It is then stamped as approved by the registrar of the court and either taken to the witness’s nearest police station or to the sheriff in their jurisdiction. The subpoena must be served in person. If you are served with a subpoena, you must sign it, after it has been thoroughly explained to you. The signed subpoena is then returned to the attorney requesting your evidence as proof it has been served. You are now legally obliged to attend court (if requested, or provide documents) on the specified date.

Are there any exemptions to being subpoenaed?

Certain exemptions exist for individuals such as diplomats, consular officials, judges and parliamentarians, who may enjoy immunity or privileges under various acts and conventions. For example, the Diplomatic Immunities and Privileges Act 37 of 2001 provides immunity for diplomats, meaning they do not have to appear as witnesses. Consular officers do not enjoy the same diplomatic immunity, but they are protected under the Vienna Convention on Consular Relations. This allows them to decline to give evidence. Judges are granted protection against subpoenas without the consent of the court, to ensure the judiciary’s independence is maintained. 

In some cases, an ordinary member of the public may be exempted from the obligations of a subpoena. The Witness Protection Act 112 of 1998 makes provision for civil proceedings involving protected persons, acknowledging the balance between justice and the need to protect the identity of someone under witness protection. 

Failure to comply

If you are unable to attend on the date of the court case, for example if you are going to be overseas or in hospital, you must write to the court and explain your reasons. But in the absence of extenuating circumstances, you are advised to shift any other commitments you may have to ensure you are free to attend court. If you refuse to attend, you may be held in contempt of court and a warrant could be issued for your arrest. You could wind up with a fine or even imprisonment. A subpoena is not something to ignore!

Setting aside a subpoena

The court can exercise its jurisdiction to set aside a subpoena, particularly if it is evident that the witness cannot contribute meaningfully to the trial. However, setting aside a subpoena is exceptional and requires a high burden of proof, so do not rely on this as a means of avoiding a court appearance.

Consult an attorney

Our legal system aims to balance the need for truth with the protection of individuals’ rights, ensuring a fair and just legal process. If you are subpoenaed, try to look on it as an opportunity to play your part in the pursuit of justice in a fair and democratic society. If you are served with a subpoena, it should state clearly what you are required to do or provide. However, if you have any questions or concerns, SD Law will be happy to advise you. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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