In most cases, subpoenas are used for individuals who would be reluctant to participate in CCMA proceedings on behalf of one of the parties. There may be many reasons for this reluctance.
One is when the individual being subpoenaed holds the view that he or she was not closely involved in the issues leading up to the dispute and so will add no value to the arbitration proceedings.
Oftentimes, a disgruntled existing or former employee of an entity will serve a subpoena on an executive or senior employee to appear before the CCMA. Given the seniority of the person being subpoenaed and their lack of involvement in or knowledge of the issues around the dispute, companies are likely to seek ways to have their senior employee exempted from complying with the subpoena.
Section 142 of the Labour Relations Act gives a commissioner the power to issue a subpoena for an individual to appear before the CCMA. Rule 37 of the CCMA Rules lists the requirements for a subpoena to be issued, including that it must be signed by the Director of the CCMA.
One of the listed reasons the Commission may use to refuse to issue a subpoena is if the requesting party, in its motivation, does not establish why the evidence of the person is necessary. There are two concerns with this listed reason.
First, without the facts of the matter being referred for arbitration, it would be difficult for the Commission to find that the requesting party has failed to establish why the evidence of the person is necessary.
Second, the opposing party and/or the individual being subpoenaed are not afforded the opportunity to dispute what has been submitted in the motivation to the Commission.
As a result, subpoenas may be issued even where an individual’s evidence is not necessary and their presence at arbitration will not assist in the resolution of the dispute.
Having a subpoena set aside
For an individual to be exempt from complying with a subpoena, the subpoena ought to be set aside. Commissioners do not have the power to set aside subpoenas; as a result, an application would be brought before the Labour Court. This would have to be an urgent application given that a subpoena must be served at least seven days before the date of the arbitration.
It is important to note that it is difficult to have a subpoena set aside on the grounds that it constitutes an abuse of process and the witness subpoenaed will not be able to lead evidence relevant to the dispute. There is an intrinsic difficulty in determining whether evidence is relevant or not until such evidence is actually heard. Furthermore, it may be that such evidence will be relevant to the referring party’s case. This will only become clear once the subpoenaed witness appears at arbitration.
In Harris & others v CCMA & others  2 BLLR 178 (LC), the applicants succeeded with an application to set aside subpoenas served on six individuals on the basis that the subpoenas were not signed by the Director or the convening senior commissioner with delegated authority. Therefore, the subpoenas did not comply with section 142(2) of the Labour Relations Act (LRA). They did not succeed in challenging the substantive merits of the issuing of the subpoenas.
Tread cautiously when claiming abuse of process
The Labour Court went on to mention the case of Beinash v Wixley  3 SA 721 (SCA). Here, it was held that the right of a litigant to obtain the issuing of a subpoena is one that should not be abused. However, the court should be cautious in exercising its powers to set a subpoena aside on the basis that it constitutes an abuse of process. This reasoning is in line with ensuring the speedy resolution of disputes as envisioned by the LRA.
Where the reluctant witness fails to comply with a subpoena issued under the auspices of the CCMA without good cause, a commissioner has no power to hold such individual in contempt of the Commission, but may make a finding in this regard. The finding may then be referred to the Labour Court, which will be required to subpoena the reluctant person before making a decision about the commissioner’s finding.
Parties may look into submitting statements of admitted facts and concluding pre-arbitration minutes, among others, as a means to avoid “unnecessary” witnesses being subpoenaed. There may also be merit in reviewing the process contained in Rule 37 of the CCMA Rules. As it stands, once you have been subpoenaed, you are better served complying.
Sibusiso Dube is of the Employment and Benefits practice at Bowmans.