A subpoena is generally necessary when either an employer or employee party requires relevant testimony or evidence in the form of oral evidence, a book, document or object from a person who is unwilling to voluntary appear at the Arbitration hearing, to provide his or her testimony or evidence to the arbitrator.
It is an order by a court or tribunal that commands the presence of a witness to testify or produce specific evidence at a specific time, date and venue. A subpoena may be issued by the CCMA prior to the scheduled date of hearing. The application must be made fourteen (14) or more days prior to the date of the hearing and service thereof must be concluded by either the requesting party or the sheriff, seven (7) days before the scheduled date of the hearing. Proof of service of the subpoena must be retained and provided to the arbitrator at the Arbitration.
The subpoena must be served in accordance with Regulation 3 of the Labour Relations Regulations which stipulates:
- By delivering a copy of it to the person subpoenaed personally;
- By sending a copy of the subpoena by registered post to the subpoenaed person’s residential address, place of business or employment or post office box or private bag; or
- by affixing a copy thereof at the person’s residence or place of business or employment, or service on a person who is apparently at least sixteen (16) years of age or older, who is also residing or employed at the subpoenaed person’s place of business or employment.
If a matter is adjourned or postponed and the witness is required to appear on a further date, a new subpoena must be issued or the Commissioner may warn the witness to appear on such future date.
A Commissioner may also, acting in his or her own accord, subpoena a witness.
The requesting party will be held liable to pay witness fees, reasonable travel costs and subsistence expenses unless payment of these fees are waived by the CCMA in terms of section 142 (7)(C).
Failure to appear without a good reason, will amount to contempt of the CCMA and the Commissioner may make such a finding and refer it to the Labour Court for an appropriate order.
Contempt of the CCMA is a serious matter and could lead to severe penalties.
Members are advised to adhere to and comply with a valid subpoena when received and contact your local Consolidated Employers Organisation office for assistance.
Article by: Jacques Du Toit
Dispute Resolution Official – Bethlehem