A subpoena is a document issued by the CCMA that compels a witness to testify in an arbitration. The CCMA has established specific rules and procedures governing the issuing of subpoenas, which are outlined in Rule 37 of the CCMA Rules. To obtain a subpoena, the requesting party must complete a 7.16 form, accompanied by a written motivation, and submit it to the CCMA. The rule also requires the payment of witness fees.

Section 142 of the Labour Relations Act (LRA) grants commissioners the authority to issue subpoenas for individuals to appear before the CCMA.

Despite the best efforts of parties to prepare for arbitration proceedings, there is always the risk that a subpoenaed witness may testify against the party who called them and provide testimony that can negatively impact the outcome of the case.

For example, an eyewitness to a workplace incident reports seeing a colleague consuming alcohol, prompting the employer to take disciplinary action and ultimately dismiss that employee. The dismissed employee subsequently refers an unfair dismissal dispute. By the time the matter is set down for arbitration, the eyewitness has secured new employment at a different company. The eyewitness is subpoenaed to testify in the arbitration proceedings and now testifies against the employer, disputing their earlier statement.

When this occurs, the representative may apply to the arbitrating commissioner to declare the witness hostile. This declaration enables the representative to cross-examine their own witness.

The declaration of a witness as hostile is recognised as an exception to the general rule that a party may not discredit or cross-examine their own witness. By declaring a witness hostile, the representative can adapt their strategy and respond to unexpected testimony, potentially mitigating any damage caused by the witness’s testimony.

In the case of Stellenbosch Farmers’ Winery Group Ltd. and Another v Martell & Cie SA and Others (427/01) [2002] ZASCA 98; 2003 (1) SA 11 (SCA) (6 September 2002), the Supreme Court of Appeal held that where a Commissioner is faced with two conflicting versions before him the Commissioner must make a finding on the credibility of witnesses and the probabilities of the two versions to determine where the truth lies. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. The Court further held that the credibility of a witness is inextricably bound to the consideration of the probabilities of the case; the Commissioner should therefore resort to credibility where the probabilities fail to point to which version embraces the truth more.

In conclusion, parties must be prepared for the possibility of unexpected testimony from subpoenaed witnesses. By understanding the rules and procedures governing subpoenas, as well as the option to declare a witness hostile, parties can develop effective strategies to navigate unexpected testimonies.

Article by Thina Madubela

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)