Subpoena duces tecum

22 June 2022 15:00 by Merilyn Kader

In Deltamune (Pty) Ltd and Others v Tiger Brands Limited and Others [2022] 2 All SA 26 (SCA), the requirements of relevance (necessary and appropriate) and specificity (material facts) when issuing subpoenas.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Civil procedure - Subpoena duces tecum – requirements of relevance and specificity: An outbreak of listeriosis in South Africa between January 2017 and 3 September 2018 saw several people across the country contracting an infection of the bacterium Listeria monocytogenes (L. mono) as a result of consuming contaminated ready-to-eat meat products produced by the respondents (Tiger Brands) in Deltamune (Pty) Ltd and Others v Tiger Brands Limited and Others [2022] 2 All SA 26 (SCA).

A class action was brought against the company. In response, Tiger Brands issued subpoenas, which required the recipients thereof to produce an array of documents, items and test results conducted for the L. mono. The appellants in turn brought applications in the High Court, for setting aside of the subpoenas. The grounds for the applications were that the documents were –

  • not relevant to the issues arising in the class action;
  • the breadth of the requests constituted an abuse of the court process;
  • the subpoenas amounted to a fishing expedition; and
  • the information in the requested documents was confidential and private.

The court’s upholding the validity and enforceability of subpoenas led to the present appeals.

It was held that the relevance in respect of a subpoena duces tecum is not only necessary, but appropriate. The second pertinent issue was that of specificity.

Rule 18(4) of the Uniform Rules of Court requires that pleadings contain a clear and concise statement of the material facts on which the pleader relies. The particularity required in that rule relates only to the material facts of the party’s case. Thus, the pleader is only required to set out the material facts – with due regard to the distinction that should be maintained between the facts, which must be proved in order to disclose the cause of action (facta probanda) and the facts or evidence which prove the facta probanda (facta probantia). The latter should not be pleaded at all, whereas the former must be pleaded together with the necessary particularity. In the context of a class action, there is an added consideration: The certification order sets the parameters within which the issues in the pleadings should be considered. What this suggests is that even where facta probantia are pleaded, as is the case here, a court is enjoined to distil the real issues between the parties, within the confines of the certification order. This it can only do if it ignores the unnecessarily pleaded pieces of evidence and focuses on the facta probanda of the case before it.

Tiger Brands’ attempt to cast doubt on whether it was the sole source of the outbreak was not the purpose of a subpoena duces tecum. The focus of the class action was only on those whose damages resulted from consuming products from Tiger Brands’ meat processing facility at Polokwane. It was, therefore, irrelevant for purposes of the class action, whether other persons might have been harmed by the consumption of products manufactured by anyone other than Tiger Brands through its Polokwane facility. Having regard to the certification order, the reference to possible cross-contamination was extraneous to the certified class action.

The appeals were upheld.

Merilyn Rowena Kader
Legal Editor at LexisNexis