Issuing subpoenas in the CCMA
Most arbitrations are run in the CCMA without the need to subpoena witnesses. Witnesses are called and are willing to testify without calling on the CCMA to subpoena the witness. Although the employees and the employers often want as many witnesses as possible to come and testify for them, there are certain rules that have to be considered or complied with in order to get a witness before the commissioner.
First of all, the witness needs to confirm a fact or facts that the party calling him or her, relies on. Alternatively the witness has in his or her possession a document or a book that the party needs and the subpoena will then direct the witness to deliver that book or document to the commissioner. Often parties want to subpoena a witness who is not entirely supportive of their case. This is often a tactical move that needs to be carefully considered. One may be successful in subpoenaing the witness without careful consideration of the effect that witness may have on one’s case. An unwilling witness is most of the time not worth calling as a witness at all. Although they may have facts to support your case, they are not sympathetic to you or your case and may either damage your case under cross examination or even support the case of your opponent! Before calling a witness, whether through subpoena or not, careful consideration should always be given to the value such a witness may add to your case.
The rules of the CCMA with regard to subpoenaing a witness are different from that of the Magistrates’ or High Court. In terms of section 138(2) of the Labour Relations Act, subject to the discretion of the commissioner as to the appropriate form of the arbitration proceedings, a party to the dispute may give evidence, call witnesses or question the witnesses of any other party at the proceedings. The powers of the commissioner with regard to subpoenas are set out in section 142 of the LRA. In terms of this section, the commissioner who has been appointed to attempt to resolve a dispute may 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. In practice the subpoena is issued by the CCMA and must be signed by the Director of the CCMA. Currently the senior convening commissioner of each region has been authorised and mandated to sign subpoenas.
The LRA however also allows a commissioner to, out of his own accord or on application, subpoena a witness. The CCMA or the commissioner may also subpoena any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute and to appear before the commissioner to be questioned or to produce that book, document or object.
Furthermore, the commission or the commissioner may, through a subpoena call, and if necessary subpoena, any expert to appear before the commissioner to give evidence relevant to the resolution of the dispute. The commissioner may also call any person present at the conciliation or arbitration proceedings 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.
It is therefore clear from this section of the LRA that the right to subpoena witnesses belong to the CCMA or the commissioner on application from the party wishing to call the witness. For this reason, the CCMA will not issue the subpoena without written reasons supplied to the Senior Convening Commissioner as to why the witness has to appear before the CCMA to testify. The witness’s evidence must be necessary for the case of the person calling the witness and the witness must have a reasonable period to comply with the subpoena.
A subpoena issued by the CCMA must specifically require the person named in it to appear before the commissioner. The name of the commissioner must be included in the subpoena form LRA 7.16 and if it requires a book or document to be produced, the subpoena must sufficiently identify the book, document or object to be produced; and must state the date, time and place at which the person is to appear. The commission must pay the witness fees. For that reason the commission also requires the person requesting the subpoena to offer to pay the witness fees to the witness.
Any person who refuses to appear or testify or leaves the CCMA without being released are in contempt of the CCMA. The commission does not have the power to enforce the subpoena but may hold the person in contempt. The CCMA can then refer the case to the Labour Court who can confirm the order of contempt and can accordingly make an award against the individual which can be in the form of an interdict or order to comply or an order to imprison a witness or to pay compensation or damages based on the order of contempt.
In terms of rule 37 of the rules of the CCMA, any party who wishes to subpoena a witness must apply to the CCMA, together with full written motivation, at least 14 days before the arbitration. The application must be in the form of LRA 7.16 and can be faxed to the CCMA. However, once issued, the applicant must collect the original subpoena from the CCMA. The motivation must include an offer to pay the witness fees. The original subpoena must be served on the witness at least 7 days before the arbitration. In terms of regulation 938 of 2002 a subpoena can be delivered to the witness personally, or by registered post to the home, work address or postal address or it can be left at the home, work or business of the witness with a person who is older than 16 and is working or residing there. It can also be served through the sheriff of the court. The witness fees are R 200.00 per day the witness is required to be at the hearing together with reasonable substantiated traveling and subsistence costs.
Johanette Rheeder Incorporated