Given their sensationalised reputation and both the perceived and real consequences of not complying with them, it is useful to return to basics in understanding when a party can elect not to abide by a subpoena and apply to have it set aside.

A subpoena is a mechanism that empowers litigants to procure evidence or witness attendance during ongoing litigation, with a subpoena duces tecum relating to the provision of documentary evidence. Simply put, it allows a litigant to present and defend a matter in a meaningful way, which forms part of their right to a fair hearing. A person failing to comply with a subpoena without reasonable excuse is guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months. As such, failure to comply with a properly issued subpoena has serious consequences, not only for the resolution of the issues in dispute, but also for the parties themselves who fail to comply.

A recipient of a subpoena may apply to court to have a subpoena set aside if there are legitimate grounds for doing so. Such grounds include where a litigant issues a subpoena erroneously, or the subject of the subpoena is, amongst other things, irrelevant; unnecessary; relates or belongs to a party who is far removed from the dispute; is private or confidential; or could be properly produced by another party or through an alternative process.

The issue of setting aside a subpoena came before the Supreme Court of Appeal in Deltamune (Pty) Ltd v Tiger Brands Limited [2022] (3) SA 339 (SCA), where the court held that “third parties may be subpoenaed to attend court and produce documents. Third parties ought not to be required to do so unless it is absolutely necessary and there is some certainty that such documents are relevant to the issues in the underlying action.”

The threshold for relevancy is higher for subpoenas than discovery, as the discovery of documents is only applicable to litigating parties and not third parties. As such, there ought to be a greater degree of certainty that a document which is subpoenaed is relevant to the pleaded issues. 

It is important to clarify that Deltamune did not establish the principle that a party seeking a document under subpoena must show the document is “absolutely necessary”. Rather the position established in Deltamune, which is consistent with the existing precedent, is that a party seeking to set aside a subpoena bears the burden to demonstrate that the document sought would not be relevant, either directly or indirectly, to a pleaded issue. This party must demonstrate this lack of relevance with certainty.

It is important to remember that recipients of subpoenas have remedies available to them to resist compliance, provided that they have a valid reason to do so. While the burden is on the recipient to set aside a subpoena, litigants must also remain cautious when issuing subpoenas to ensure that the document or evidence sought is relevant to their pleaded case.