A. EXPOSITION OF THE RULE

1. Any party who requires the Commission or a commissioner to subpoena a person in terms of section 142(1) of the Act, must file a completed LRA Form 7.16 together with a written motivation setting out why the evidence of the person to be subpoenaed is necessary.

2. A party requesting the Commission to waive the requirement for the party to pay witness fees in terms of section142(7)(c) must set out the reasons for the request in writing at the time of requesting the Commission to issue a subpoena in respect of that witness.

3. An application in terms of subrule (1) must be filed with the Commission at least fourteen days before the arbitration hearing, or as directed by the commissioner hearing the arbitration.

4. The Commission or a commissioner may refuse to issue a subpoena if:

a) the party does not establish why the evidence of the person is necessary.
b) the party subpoenaed does not have a reasonable period in which to comply with the subpoena;
c) the Commission or a commissioner is not satisfied that the party has made arrangements to pay the witness fees and the reasonable travel costs of the person subpoenaed.

5. A subpoena must be served on the witness subpoenaed:

a) by the person who has requested the issue of the subpoena of by the Sheriff, at least seven days before the scheduled date of the arbitration;
b) if so directed by the Commission, accompanied by payment of the prescribed witness fees for one day in accordance with the tariff of allowances published by notice in the Government Gazette in terms of section 142 (7) of the Act and the witness’ reasonable travel costs.
6. Subrules 4 (c) and 5 (b) do not apply if the Commission in terms of section 142 (7) (c), as waived the
requirement to pay witness fees.

B. ANALYSIS OF THE RULE AND CROSS-REFERENCE TO OTHER PROVISIONS

1. Purpose of the rule

The purpose of a subpoena is fourfold, namely:

a) to compel a person who may be able to give information to appear before the CCMA for questioning; or
b) to secure the attendance of a witness, including an expert witness, at arbitration proceedings; or
c) to compel a person who may have a book, document or object relevant to the resolution of the dispute under his or her control or possession, to appear before the CCMA for questioning; or
d) to secure the attendance of a witness to produce any book, document or object relevant to the resolution of the dispute that may be under the control of the witness or in the witness’ possession, in evidence.

The provisions of 142 of the LRA authorise the commissioner who has been appointed to attempt to
resolve a dispute, to facilitate the above.

The section provides:
142 Powers of commissioner when attempting to resolve disputes
1) A commissioner who has been appointed to attempt to resolve a dispute may-
a) a subpoena for questioning any person who may be able to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute.
b) subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, to appear before the commissioner to be questioned or to produce that book, document or object;
c) call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute;
d) call any person present at the conciliation or arbitratio9n proceeding or who was or could have been subpoenaed for any purpose set out in this section, to be questioned about any matter relevant to the dispute.

2) A subpoena issued for any purpose in terms of section (1) must be signed by the director
and must-

a) specifically require the person named in it to appear before the commissioner;
b) sufficiently identify the book, document or object to be produced; and
c) state the date, time and the place at which the person is to appear.

2. Process of issuing a subpoena

Prior authorization is required must request the CCMA or a commissioner to subpoena to subpoena a
person referred to in s 142 (1) of the LRA.

In terms of rule 37(1), the process of facilitating the issue of a subpoena comprises two requirements,
i.e. the prescribed form and a written motivation in the following manner:

a) filing of the completed prescribed LRA form 7.16

b) in addition, filing of a written motivation setting out why the evidence of the person to be subpoenaed is necessary. The motivation deal with the following:

i) the date, time and place at which the person to be subpoenaed will be required to appear; and

ii) reasons why the person to be subpoenaed may be able to give information or evidence assisting in the resolution of the dispute with a reference to the facts of the dispute and which of those facts the witness will testify to; or

iii) reasons, with reference to the facts of the dispute, why a person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute, should be subpoenaed to appear before the CCMA to be questioned or to produce such book, document or object, including and identification of the book, document or object; or

iv) reasons why the evidence of an expert witness is necessary and relevant to the resolution of the dispute, with reference to the facts of the dispute and which of those facts the witness will testify to; and

v) if a request is made for waiver of the payment of witness fees, the reasons for such request.

In terms of s 142 (2) of the LRA, a subpoena issued for any purpose in terms of s 142 (1) must be signed
by the director of the CCMA. In practice, the senior convening commissioner of a particular province will
sign the subpoena as the delegate of the director.

For further information on any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za