It is a fact that many employees are unaware that, similar to criminal or civil courts procedures, the CCMA or Bargaining Council can compel witnesses to testify or provide information.
Usually this occurs when crucial witnesses refuse to present themselves for questioning or if the employer does not provide the employee with the necessary documents to support his or her case on a voluntary basis.
It’s not secret those employees want to keep good relationships with their employers. Due to this, they would not want to become involved in disputes with the employer, as this could endanger their relationship. In addition, fearing losing their jobs, employees refused to testify.
In addition, to prevent potentially prejudicial information from being provided to the employee, the employer would not be willing to disclose this information voluntarily. Therefore, a subpoena is the only means available to an employee in this instance.
Issuing a subpoena
(1) Any party who requires the Commission or a commissioner to subpoena a person in terms of Section 142(1) of the Act, subpoena to be served must be accompanied by a completed LRA Form 7.16 and a written motivation of why the person must be subpoenaed.
(2) A party requesting the Commission to waive the requirement for the party to pay witness fees in terms of Section 142(7) (c),n order to obtain a subpoena from the Commission, the attorney must set out the reasons for the request in writing at the time of the request. The Commission’s decision must be issued in writing along with the subpoena.
(3) An application in terms of sub-rule (1) must be filed with the Commission at least fourteen (14) days prior to the arbitration hearing, or as directed by the commissioner hearing the arbitration.
The Commission may refuse to issue a subpoena
(a) the party does not establish why the evidence of the person is necessary;
(b) the party subpoenaed does not have seven (7) days within which to comply with the subpoena;
(c) the party subpoenaed has not paid the prescribed witness fees, reasonable travel costs, and/or subsistence expenses to the person subpoenaed.
A subpoena must be served
(a) by the person who has requested the issuing of the subpoena or by the Sheriff, at least seven (7) days prior to the scheduled date of the arbitration by:
(b) by delivering a copy of it to the person subpoenaed personally;
(c) by sending a copy of it by registered post to the subpoenaed person’s–
(i) residential address;
(ii) place of business or employment; or
(iii) post office box or private bag number;
(d) by leaving a copy of it at the subpoenaed person’s place of residence or place of business or employment with a person who apparently is at least sixteen (16) years of age and is residing or employed there.
(6) Service of a subpoena must be accompanied by proof of 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 witnesses’ reasonable travel costs and subsistence expenses.
(7) Sub-rules (4)(c) and (5)(b) do not apply if the Commission, in terms of Section 142(7)(c), has waived the requirement to pay witness fees.
Payment of witness fees
(1) A witness subpoenaed in any proceedings in the Commission must be paid a witness fee in accordance with the tariff of allowances published by notice in the Government Gazette in terms of Section 142(7) of the Act.
(2) The witness fee must be paid by –
(a) the party who requested the Commission to issue the subpoena; or
(b) the Commission, if the issuing of the subpoena was not requested by a party or if the Commission waives the requirement to pay witness fees in terms of Section 142(7)(c) .
(3) Despite sub-rule (1), the commissioner may, in appropriate circumstances, order that a witness receives no fee or reasonable travel costs and subsistence expenses or only part of such fees or expenses.
The purpose of subpoenas is to gather evidence to prove or disprove elements of a party’s case.
Essentially, it is a mechanism in which parties can compel witnesses to appear before the Commission or Council or provide information essential for their case, which would otherwise not be freely provided. It is therefore imperative for parties to ensure they have adequate information to prove or disprove elements of their cases. This can be accomplished with subpoenas.
