GOWORA
JA: This
is an appeal against part of the judgment of the Fiscal Appeal Court
dismissing an application to set aside a subpoena duces
tecum
issued against the appellants.
The
first appellant and the first respondent are both mobile network
providers operating in Zimbabwe. At the time of the institution of
proceedings in the court a
quo
the second appellant was the Chief Executive Officer of the first
appellant and was referred to as its Managing Director. The second
respondent is the authority mandated with the collection of taxes and
other dues on behalf of the fiscus.
The
first respondent is involved in litigation with the second respondent
before the Fiscal Appeal Court concerning the reach and ambit of
certain classification and tariff rulings on imported base stations
for the purpose of calculating import duty. During those proceedings,
the first respondent alleged that it was being discriminated against
as other companies which also imported base stations in connection
with the provision of mobile networks were taxed differently to
itself. A specific allegation was made that the first appellant in
particular had been accorded a privileged treatment based on its ties
with the government. In the dispute between them the first respondent
wished to be treated in the same manner as the first appellant.
In
order to prove the allegation, the first respondent made efforts to
call as a witness on its behalf a former clearing agent who had been
engaged by the first appellant to clear base station components
imported by the latter. The first respondent claimed that the base
stations in question were classified under the duty free tariff
regime, and it required the witness to testify and show that the
first respondent was being discriminated against in violation of its
rights. On becoming aware of this intention the first appellant
declined to consent to the agent testifying or producing any
documents relating to the importation of the base stations.
The
first respondent as a consequence applied in terms of s 6(1) and (2)
of the Fiscal Appeal Court Act, (the Act), for the leave of the court
to subpoena the second appellant to appear before the court and
produce documents relating to the clearance of the first appellant's
base stations. The second respondent's counsel was not opposed to
the issuance of a subpoena in relation to the second appellant.
Neither appellant was before the court as they were not parties to
the dispute. No papers, apart from the subpoena itself, were served
upon them in relation to the subpoena. The court ruled that the
second appellant should be subpoenaed to appear in court on the next
day. The issued subpoena reads:
“To:
Reward Kangai
Of
NetOne Cellular (Pvt) Ltd, 16th
Floor Kopje Plaza Building, 1 Jason Moyo Avenue, Harare.
You
are required and directed to attend before the Fiscal Appeal Court of
Zimbabwe, at the Fiscal Appeal Court, Harare on the 10th
day of February 2015 at the hour of 10 o'clock in the morning and
so from day to day until the above case is tried, to give evidence on
behalf of the Appellant, and also to bring with you and produce at
the time and place aforesaid all the import documents, namely, bills
of entry, packing lists, invoices and proof of payment of any duty
relating to importation of base stations and base station component
by Net One duly stamped by the Zimbabwe Revenue Authority at the
ports of entry where these base stations or base station parts or
components entered into the country for the whole period commencing
October 1998 and ending 30 November 2013.”
In
answer to the subpoena, the second appellant appeared before the
court and sought a postponement to seek proper legal advice. On 17
February 2015, the second appellant's legal practitioners addressed
a letter to the first respondent's legal practitioners requesting a
detailed report of the case before the court and the reasons why
their client's testimony was required. The first respondent's
legal practitioners responded by letter dated 26 February 2015
stating that their client was of the view it was being discriminated
against as it believed that the first appellant's base stations
were being imported duty free.
In
a letter dated 4 March 2015, the second appellant, through his legal
practitioners, objected to testifying. The reasons advanced in the
letter are captured in the excerpt below:
(a)
The issues to be adjudicated upon by the Honourable Court have no
bearing on the evidence that you seek to be adduced from our client.
There is clearly no need to call our client to testify and to prove
or disprove any of the issues before the court.
(b)
The evidence required from our client will not serve any material
purpose to the case before the court because whether or not our
client paid duty on the relevant components is not the determining
factor on whether or not your client should or should not pay the
duty.
(c)
The evidence that you seek to adduce from our client, and in
particular the documents our client must produce, are documents
confidential to it and to its business. Your subpoena's effect is
to call upon our client to disclose its private business making the
disclosure to the public, and most objectionably to its competitor
(your client).
(d)
Our client has a constitutionally protected right to privacy as it is
not a party to this pending case. The subpoena and the nature of the
evidence required from our client, constitutes a gross invasion of
this right. There is no basis upon which our client can justify the
infringement of this right to the court.
(e)
The subpoena also states that the Managing Director, Reward Kangai,
is the one who should come to testify. The Managing Director is also
required to bring several bulky documents dating back to 1998. All of
the documents demanded are operational in nature hence their
confidential status aforesaid and the Managing Director subpoenaed is
not the custodian of these documents. As such what this subpoena
demands is also legally untenable.
(f)
It is clear from the afore-going that the subpoena served on our
client is actually an abuse of court process and must therefore be
set aside.
Notwithstanding
the objections spelt out in the letter, the first respondent
persisted with its demand that the second appellant appear in court
or face contempt of court charges. As a result the appellants applied
to the Fiscal Appeal Court on 17 March 2015 for an order for the
setting aside of the subpoena duces
tecum.
The
court a
quo
found that the requested documents were relevant to the determination
of the real issues between the first and second respondents and that
the first appellant's right to privacy was countervailed by the
first respondent's right to access of information. Relating to the
second appellant, the court held that he was a competent and
compellable witness and could testify on the pertinent issues found
in the subpoenaed documents. The court also held that the scope and
reach of the documents was unavoidable given the nature of a base
station. Ultimately, the court refused to set aside the subpoena and
dismissed the application.
The
appellants were aggrieved by the decision and appealed to this Court
on the following grounds:
1.
The court a
quo
erred in failing to consider that the evidence which first respondent
wanted to force appellants to produce is in the possession of second
respondent and first respondent could consequently enforce production
of same from the party against whom it seeks substantive relief.
2.
A fortiori
the
court a
quo
erred in not concluding that the taking out of the subpoena was
consequently an exercise in mischief and was meant to be unduly
oppressive to the appellants under circumstances where such invasion
was contrary to the appellant's right to privacy.
3.
Having come to the conclusion that what was at issue was a subpoena
duces
tecum,
the court a
quo
erred in failing to consider that such a subpoena does not require
the testimony of a particular person and that the identification of
second appellant on the subpoena was vexatious and unduly burdensome.
4.
The court a
quo
erred in failing to come to the conclusion that the impugned subpoena
was far too generalized and speculative being in essence a trawling
exercise in search of unknown evidence.
5.
Regard being had to the circumstances under which it was taken, the
court a
quo
erred in not concluding that the subpoena duces
tecum
was a retaliatory measure and is on consideration of that
circumstance an abuse of court process and is in breach of
appellant's right to the protection of the law.
At
the initial hearing of the appeal, the first respondent moved a
preliminary point advanced in its heads of argument to the effect
that the appeal was not properly before us on the grounds that the
judgment in the court a
quo
was interlocutory. To that end it had been argued that the appellants
should have sought and obtained leave of the High Court before noting
the appeal.
In
a judgment by PATEL JA (with which Hlatshwayo JA and I concurred),
the preliminary point was dismissed with costs and the court ordered
that the appeal proceed on the merits.
When
the appeal hearing resumed on 10 July 2017 at the commencement of the
hearing, the court intimated to the parties that the second appellant
was allegedly discharged from the first appellant's employ and
inquired from Miss Mahere
who appeared for the first respondent whether that had a bearing on
the present matter. Miss Mahere
submitted that the second appellant had been merely suspended and
that as a consequence one could not predict the outcome of those
proceedings. She also submitted that while the second appellant is
not cited in his official capacity, the substance of the subpoena is
that the Managing Director of the first appellant should testify.
Mr
Mpofu
for the first appellant submitted that the second appellant's
employment was in fact terminated and made an undertaking to bring
before the court the record of proceedings pending before the High
Court relating to the termination. This was also confirmed by Mr
Chinake
who appeared for the second respondent. The court proposed to take an
adjournment and give Miss Mahere
time to take instructions concerning the new development and all
parties were amenable to the proposal. After a brief adjournment,
Miss Mahere
confirmed that she had taken instructions and stated that her client
insisted that the matter proceed because it would be prejudiced if
crucial findings of the court a
quo
were set aside on that basis. The court allowed the matter to proceed
and indicated that the point would be dealt with in this judgment.
After
the hearing, this Court was furnished with the record of proceedings
in the matter between the second appellant and the first appellant
under case number HC 11003/16. The record contains a letter of
termination of the second appellant's employment on notice dated 12
October 2016 and the proceedings seek to challenge the letter of
termination. In Mhungu
v Mtindi
1986 (2) ZLR 171 (SC) at 173A-B McNally JA said-
“It
seems clear from the judgment in which the learned judge a quo
granted summary judgment that he made reference to the papers in case
number HC3406/84. In so doing he was undoubtedly right. In general
the court is always entitled to make reference to its own records and
proceedings and to take note of their contents - Halsbury 4 ed Vol 17
paragraph 102; Boyce
NO v
Bloem
& Ors 1960
(3) SA 855 (T); Shell
Zimbabwe (Pvt) Ltd
v Webb
1981
ZLR 498 (HS) at 503-4 (this case was upset on appeal but not on this
point). The position is a fortiori
when the defence involves a reference to the previous proceedings, as
this one does.”
In
the event, this court is entitled to take note of the record of
proceedings in HC 11003/16. The record confirms indeed that the
second appellant had been discharged from the first appellant's
employ. The subpoena sought his attendance at the disputed
proceedings between the first respondent and his erstwhile employer
in his capacity as its Managing Director. In view of the discharge it
can no longer be possible for him to attend in such capacity. He
would no longer have the right to access any documents belonging to
the first appellant. Thus it is no longer possible for him to fulfil
the terms of the impugned subpoena.
I
turn now to the substance of the appeal.
The
first appellant took issue with the fact that the subpoena specifies
an individual to come and testify. It submitted that the court a
quo
failed to appreciate that the subpoena issued in this matter is one
duces
tecum
which does not require the attendance of a particular person on the
premise that a subpoena duces
tecum
which compels the production of documents does not in the same vein
require the giving of oral testimony. For this submission, the
appellant relied on the case of Poli
v Minister of Finance and Economic Development & Anor
1987 (2) ZLR 302 (SC) in which DUMBUTSHENA
CJ quoted Fisher
v United States
(1976) 425 US 391;48 Led 2d 39 where it was stated:
“A
subpoena that demands production of documents 'does not compel oral
testimony; nor would it ordinarily compel the taxpayer to restate,
repeat, or affirm the truth of the contents of the documents sought.”
In
my view this authority is support for the principle that a subpoena
duces
tecum
can only demand the production of documents as opposed to compelling
a witness give oral testimony. This fortifies the position taken by
the appellants that a subpoena duces
tecum
could not demand the production of documents as well as compelling
the attendance of a witness to give oral testimony on the documents
being sought to be produced.
I
must agree.
The
court a
quo
made a finding that the second appellant was a competent and
compellable witness and could testify on the pertinent issues found
in the subpoenaed documents. Whilst the appellants have not
challenged this finding, which in any event they could not, such
finding does not, however, sanction the summoning of the second
appellant to give oral testimony on the basis of a subpoena duces
tecum.
The
impugned subpoena was issued by the court a
quo
following an application by the first respondent in terms of s 6 of
the Act, which provides as follows:
“6
Summoning and privileges of witnesses
(1)
The Court shall have power to summon witnesses, to call for the
production of and grant inspection of books and documents and to
examine witnesses on oath.
(2)
A subpoena for the attendance of witnesses or the production of books
or documents shall be signed by the Registrar of the Court and served
in the same manner as if it were a subpoena for the attendance of a
witness at a civil trial in a Magistrates Court.
(3)
Any person subpoenaed to give evidence or to produce any book or
document or giving evidence before the Court shall be entitled to the
same privileges and immunities as if he were subpoenaed to attend or
were giving evidence at a trial in the High Court.”
Although
in Poli
v Minister of Finance and Economic Development (supra)
the learned Chief Justice sought reliance from an American authority
on this issue, it is a principle of our law of evidence which seems
to have been settled in Waterhouse
v Shields
1924 CPD 115, wherein GARDINER J made the following remarks:
“As
far as I have been able to ascertain there is no such general
provision in our statutes with regard to civil cases, but seeing that
in criminal cases and in many instances in civil cases, the law of
England in regard to evidence, where there is nothing to the contrary
in our law, is to be followed, it seems to me as a general rule we
should follow the law of evidence in England. Our system of procedure
and our practice is based in the main upon the English system and not
upon the system which used to prevail in the Courts of Holland. Now,
in England if a witness is subpoenaed, duces
tecum,
and is simply called to produce, without giving evidence or
identifying the documents he need not be sworn.”
This
position of the principle underlying the subpoena duces
tecum
was confirmed in Bladen
and Another v Weston and Another
1967(4) SA 4129,at 431D-E, where CORBETT J, (as he then was) had
occasion to remark:
“It
would appear from authorities quoted by counsel for the applicants
that the procedure whereby a witness, who is subpoenaed duces
tecum
to produce documents, is not initially required to go into the
witness-box and take an oath prior to producing those documents to
the Court, is basically one of convenience. It is also probably
dictated partially by the undesirability of such a witness being
exposed to a lengthy cross-examination on the case generally.”
In
my view, these authorities fortify the position taken by the
appellants that a subpoena duces
tecum
could not demand the production of documents as well as compelling
the attendance of a witness to give oral testimony on the documents
being sought to be produced. In their book Principles of Evidence
3ed, the learned authors Schwikkard and Van Der Merwe at p 363 state
that a person who attends court in obedience to a subpoena duces
tecum
is not necessarily a witness and consequently need not take an oath
unless he is required to prove the document, that is where he is
required to go onto the witness stand and hand in a document.
In
addition, it seems to me that a reading of s 6 of the Act would
further confirm that the submission by the appellants on the nature
and intent behind a subpoena duces
tecum
as being one for the production of documents and not the giving of
oral testimony is in fact correct. Certainly, from a perusal of the
provision there does not appear to be a requirement that the
production of documents by a witness must be accompanied by oral
evidence in proof of the same. This construction of the provision is
keeping with the views expressed by DUMBUTSHENA CJ in Poli
v Minister of Finance and Economic Development & Anor (supra).
In
my view, within our jurisdiction the above authority is support for
the principle that a subpoena duces
tecum
can only demand the production of documents as opposed to compelling
a witness give oral testimony.
It
is legally incompetent for a subpoena duces
tecum
to compel the giving of oral testimony on the premise that by its
nature, it demands the production of documents. A subpoena duces
tecum
differs from a standard subpoena,
also
known as a “subpoena ad
testificandum,”
because the subpoena duces
tecum
does not require the person named in it to give oral testimony.
Instead, the subpoena duces
tecum
only orders the person to produce the items stated in the document.
On this basis alone, the court a
quo
should have found that the subpoena as framed by the first respondent
could not stand and consequently had to be set aside.
In
my view, this ground on its own is capable of disposing of the
appeal. However, the other issues raised sufficiently pertinent legal
issues calling for their determination.
I
will now proceed to deal with the remainder of the issues raised by
the parties which are:-
1.
Whether or not the subpoena duces
tecum
is an abuse of court process
2.
Whether or not the subpoena duces
tecum
violates the appellant's right to privacy
1.
Whether
or not the subpoena duces
tecum
is an abuse of court process
It
is submitted by the appellants that the subpoena was an abuse of
court process. The appellants submit that the subpoena itself has
nothing to do with the pursuit of the truth and that it is
oppressive, thus constituting an abuse of court process. What
constitutes abuse of process was discussed in Beinash
v Wixley 1997
(3) SA 721 (SCA)
by
MAHOMMED CJ at 734E-735A as follows:
“There
can be no doubt that every court is entitled to protect itself and
others against an abuse of its processes. Where it is satisfied that
the issue of a subpoena in a particular case indeed constitutes an
abuse it is quite entitled to set it aside. As was said by De
Villiers JA in Hudson
v Hudson and Anor
1927 AD 259 at 268:
'When
… the court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice, it is the
duty of the Court to prevent such abuse.'”
Whether
a proceeding or certain conduct related thereto constitutes an abuse
of the process of the court is a matter which can only be determined
by the circumstances of each case. Consequently, there can be no
all-encompassing definition of the concept of abuse of processes.
However, it can be said in general terms that an abuse of process
takes place where the procedures permitted by the Rules of the Court
to facilitate the pursuit of the truth are used for a purpose
extraneous to that objective. (Standard
Credit Corporation Ltd v Bester and Others
1987 (1) SA 812 (W) at 820A-B; Taitz The Inherent Jurisdiction of the
Supreme Court (1985) at 16).
It
is trite that any document may be made the subject of a subpoena
duces
tecum
if it is or may be relevant to the conduct of the litigation by the
party seeking its production. That said, a subpoena duces
tecum
must have a legitimate purpose. (The unreported judgment of MARAIS J
in the WLD
Wachsberger v Wachsberger
on 8 May 1990 in case No 8963/90 and the unreported judgment of
PLEWMAN J in the WLD on 6 October 1993 in the case of Lincoln
v Lapperman
Diamond
Cutting Works (Pty) Ltd
17411/93)
What
can be gleaned from the above remarks is that a court should not
permit a subpoena duces
tecum
to be used to pursue a motive other than the securing of evidence by
the party requiring it which is important to advance its case. In
other words, the party seeking to issue a subpoena duces
tecum
should show that it has a legitimate purpose.
In
the court a
quo
the first respondent was able to show that the classification by the
second respondent of parts of base stations imported by the first
appellant is relevant to the classification of the same equipment
imported by other importers. This is important in the determination
of whether or not the second respondent is discriminating against the
first respondent which is the substance of pending proceedings before
the Fiscal Appeal Court.
However,
given the background to the dispute between the two parties, the
scope of the subpoena is questionable. The first appellant is
required, in terms of the subpoena, to produce to the court and to
the first respondent documents dating back to 1998 in a matter that
involves importation of base station components during the period
extending from 2009 to 2013. The appellants contend that this is
clearly untenable in light of the voluminous nature of the documents
which would place an overbearing burden on the first appellant.
The
court a
quo
made the following observation:
“The
scope and reach of the documents is unavoidable given the nature of a
base station. It appears that the nature of the base stations require
the importation in the form of unassembled complete knocked down CKD
components. The components are numerous and result in the production
of as many documents in the form of packing lists and bills of entry.
Collating these documents is an arduous but not impossible task. It
is hard work and to that extent burdensome but not in the futile
pejorative sense.”
The
above dictum shows that the learned judge a
quo
appreciated the burdensome nature of the subpoena issued against the
second appellant. In my view, once the court a quo found that the
extent of the subpoena was burdensome, it ought to have related to
the period over which documents were being sought to be produced. It
was necessary, in view of the inclusion of a period in the subpoena
predating the source of the dispute, for the court to have decided on
the issue of the relevance for the inclusion of that period in the
exercise. After all discovery in litigation is a process meant for
securing evidence in the pursuit of truth in the particular dispute.
The relevance of documents predating the issues before the court a
quo
should have exercised its mind in deciding whether to set aside the
subpoena or to uphold it.
The
learned Judge however failed to consider that not all required
documents were necessary to advance the first respondent's case.
The fact that the documents were named does not clothe them with the
particularity required for the issue of a subpoena duces
tecum
when one considers that they span over fifteen years. What emerges is
that the first respondent is not sure which documents will
specifically show that it is being discriminated against and hopes to
find its answer in the requested documents. This is the kind of
disclosure that courts frown upon. In Arab
Monetary Fund v Hashim and Others
[1992] 2 All ER 911 (No5), HOFFMAN J had occasion to comment on the
oppressive effect of a subpoena duces
tecum
lacking specificity. This is what he had to say:
“What
he did say, however, was that the terms of Peter Gibson J's order
were so general in identifying the categories of documents to be
disclosed that they were an oppressive use of the Bankers Trust
procedure against a third party. They required the solicitors to go
through their documents and make the sort of selection which would
normally be required of a party to the action by way of discovery. It
is of course well established that a third party liable only to be
called as a witness or under subpoena duces
tecum
cannot be required to produce documents by relevance to issues but
must be given more specific detail of what documents are required ...
the specificity of the order can in my view be sufficiently dealt
with by making amendments to the schedule.”
A
subpoena duces
tecum
cannot be used indiscriminately, as though one was on a "fishing
expedition." Only specific documents relevant to the case can be
requested. General, sweeping requests are improper and this is one
such request. As the Second District Court of Appeal in America said
in Walter
V. Page,
638 So.2d 1030 (Fla. 2d DCA 1994):
“We
agree with the appellant that the subpoena duces
tecum
was too broad. The rule authorizing a subpoena duces
tecum
requires some degree of specificity, and the documents or papers
sought should be designated with sufficient particularity to suggest
their existence and materiality. Palmer
v. Servis,
393 So.2d 653 (Fla. 5th DCA 1981); Fla.R.Civ.P. 1.350(a). The
subpoena in the instant case was too broad in seeking virtually all
of appellant's personal financial documents. The subpoena duces
tecum
is not the equivalent of a search warrant, and should not be used as
a fishing expedition to require a witness to produce broad categories
of documents which the party can search to find what may be wanted.”
These
remarks are apposite. A court should be wary of permitting litigants
to use the machinery of a subpoena duces
tecum
to request large amounts of information in the hopes that some of it
may prove useful. An order for the production of documents under such
subpoena should not be given unless the court is of the opinion that
the documents are necessary for disposing fairly of the cause or
matter. The impugned subpoena is a dragnet sweeping every fish in its
path to see if a particular species turns up in the net. The subpoena
does not pass the test of bona fides. Even though a litigant is
entitled to seek the production of documentation that he alleges
would be vital in the prosecution of his case, the request for such
production must relate to the dispute which is being litigated. There
can be no justification for a subpoena that defies the rules for
relevance in court proceedings.
The
contention by the appellants that the subpoena is an exercise in
mischief would appear to be well founded. It is an established
principle that the purpose of a subpoena duces
tecum
is that of obtaining evidence and is not meant for purposes of
obtaining mere discovery which might lead to something else. The
appellants are being asked to discharge a duty which should
rightfully in this case fall upon the second respondent.
The
view I take is that in
casu,
the subpoena does not constitute a genuine exercise by a litigant to
prosecute a dispute. It was not shown in the court below that the
subpoena, wide as it is, was necessary for disposing fairly of the
cause or matter. It cannot be allowed to stand in the circumstances
because it is clearly an abuse of process and the court has inherent
power to prevent this abuse. – see Makaruse
v Hide and Skin Collectors (Pvt) Ltd
1996 (2) ZLR 60 (S).
The
court a
quo
therefore erred in failing to find that the subpoena was an abuse of
process.
2.
Whether or not the subpoena duces
tecum
violates the appellants' right to privacy
The
appellants submit that upholding the
subpoena
duces tecum will
undermine the first appellant's right to privacy and in the process
would constitute a contravention of both the Constitution and common
law principles relating to privacy. Section 57 of the Constitution of
Zimbabwe, 2013 provides that every person has a right to privacy. The
right to privacy was explained in Gaertner
and Others v Minister of Finance and Others [2013]
ZACC 38; 2014 (1) SA 442 (CC)
as
follows:
“The
right to privacy embraces the right to be free from intrusions and
interference by the state and others in one's personal life.”
Simply
put, every person has a right not to be subjected to scrutiny of his
or her personal life or business. The right is also accorded to
juristic persons. However, while this right is protected, it is
subject to limitations. Section 86(2) of the Constitution provides
for the limitations of rights and freedoms as follows:
“(2)
The fundamental rights and freedoms set out in this Chapter may be
limited only in terms of a law of general application and to the
extent that the limitation is fair, reasonable, necessary and
justifiable in a democratic society based on openness, justice, human
dignity, equality and freedom, taking into account all relevant
factors, including -
(a)
the nature of the right or freedom concerned;
(b)
the purpose of the limitation, in particular, whether it is necessary
in the interests of defence, public safety, public order, public
morality, public health, regional or town planning or the general
public interest;
(c)
the nature and extent of the limitation;
(d)
the need to ensure that the enjoyment of rights and freedoms by any
person does not prejudice the rights and freedoms of others;
(e)
the relationship between the limitation and its purpose, in
particular, whether it imposes greater restrictions on the right or
freedom concerned than are necessary to achieve its purpose; and
(f)
whether there are any less restrictive means of achieving the purpose
of the limitation.”
This
provision is clear that derogation from a fundamental right is
permissible if two conditions are fulfilled. These are firstly, that
it should be prescribed in terms of a law of general application and
secondly, that such derogation is fair, reasonable and justifiable in
a democratic society. The limitation in casu
is prescribed in terms of s 6 (1) and (2) of the Fiscal Appeal Court
Act [Chapter
23:05]
which gives the court power to summon witnesses, to call for the
production of and grant inspection of books and documents and to
examine witnesses on oath therefore that requirement of it being
prescribed by a law of general application is satisfied.
What
is reasonably justifiable in a democratic society is a concept which
cannot be defined with precision. As this Court said In Re
Munhumeso
& Ors 1994
(1) ZLR 49 (S), at p 64B:-
“What
is reasonably justifiable in a democratic society is an elusive
concept - one which cannot be precisely defined by the courts. There
is no legal yardstick save that the quality of reasonableness of the
provision under challenge is to be judged according to whether it
arbitrarily invades the enjoyment of a constitutionally guaranteed
right. See, generally, Commissioner of Taxes v CW (Pvt) Ltd 1989 (3)
ZLR 361 (S) at 370F-372C, 1990 (2) SA 260 (ZS) at 265B-266D.”
The
import of these remarks is that the limitation imposed on a right
should not arbitrarily infringe upon the right guaranteed in the
Constitution. It is the appellant's case that the subpoena issued
in compliance with the law arbitrarily infringes upon its right to
privacy. The court a
quo
as highlighted, made a finding that the appellants' right to
privacy is countervailed by other rights such as the first
respondent's right of access to information. This position is
supported in Bernstein
v Bester NO
1996
(2) SA 751 (CC) at para 67 where the following pronouncement was
made:
“The
truism that no right is to be considered absolute implies that from
the outset of interpretation each right is always already limited by
every other right accruing to another citizen. In the context of
privacy this would mean that it is only the inner sanctum of a
person, such as his/her family life, sexual preference and home
environment, which is shielded from erosion by conflicting rights of
the community. This implies that community rights and the rights of
fellow members place a corresponding obligation on a citizen, thereby
shaping the abstract notion of individualism towards identifying a
concrete member of civil society. Privacy is acknowledged in the
truly personal realm, but as a person moves into communal relations
and activities such as business and social interaction, the scope of
personal space shrinks accordingly.”
This
constitutes confirmation that the right to privacy can be limited by
other rights that accrue to other citizens and that as an individual
engages with the community in business or other social interactions,
the scope of such right becomes limited. Whilst this principle is
accepted, the appellants contend that the subpoena issued by the
first respondent was too wide in its scope such that it cannot be
accepted as fair and justifiable in a democratic society. It allows
the first respondent to have access to its competitor's information
which information has not been shown to be necessary for the
advancement of its cause. In fact, no attempt has been made to
justify its wide ambit. The only issue upon which the first
respondent relies is that the second appellant is its competitor in
the provision of cellular services and it wishes to find evidence
that it was being treated differently by the second respondent. It
has not justified the intrusion in respect of the period from 1998 to
2009.
The
lack of particularity and specificity of the subpoena opens avenues
for an unwarranted invasion of the first appellant's privacy. The
first respondent in its heads of argument cites the English case of
Home
Office v Marman
[1982] 1 All ER 532, 540 where the following view was expressed:
“Discovery
constitutes a very serious invasion of the privacy and
confidentiality of a litigant's affairs. It forms part of English
legal procedure because the public interest in securing that justice
is done between parties is considered to outweigh the private and
public interest in the maintenance of confidentiality. But the
process should not be allowed to place on a litigant any harsh or
more oppressive burden than is strictly required for the purpose of
securing that justice is done. In so far as that must necessarily
involve a certain degree of publicity being given to private
documents, the result has to be accepted as part of the price of
achieving justice.”
This
case buttresses the point that invasion of privacy when permissible
should be rational and should not unnecessarily place a harsh and
oppressive burden on the party whose right is infringed. When the
first appellant's right to privacy is weighed against the other
rights that accrue to the first respondent, it is clear, in the
circumstances of this case, that the first appellant's right to
privacy must prevail.
Unless
justification has been clearly established for such, no person or
litigant should have their private information indiscriminately
summoned to court even for the purpose of protecting other rights.
In
the event, the subpoena should not have been upheld, primarily on
three grounds. Firstly, that it was wrongly taken by requesting
second appellant to personally attend at court and testify orally on
the documents. Secondly, the subpoena was clearly a fishing exercise
and lastly that it constituted an unwarranted invasion of first
appellant's privacy on the part of the first respondent. Thus, the
court a
quo
should have set aside the subpoena duces
tecum.
On
the question of costs, the ordinary rule is that costs follow the
outcome. Given the abuse of the court's process which has been
highlighted above, it is proper that an order of costs on the higher
scale be imposed to mark the court's displeasure with such abuse of
its processes.
In
the result the following order will issue:
1.
The instant appeal succeeds.
2.
The judgment of the court a
quo
is set aside and in its place is substituted the following:
“The
application is granted in terms of the draft order and accordingly:
(i)
The subpoena duces
tecum
issued in this matter by the registrar of the Fiscal Court on the 9th
of February 2015 be and is hereby set aside.
(ii)
The first respondent shall bear the costs of suit.”
3.
The costs of this appeal shall be borne by the first respondent on
the scale of legal practitioner and own client.
HLATSHWAYO
JA:
I
agree
MAVANGIRA
JA: I
agree
Mhishi
Legal Practice,
appellants' legal practitioners
Mtetwa
& Nyambirai,
1st
respondent's legal practitioners
Kantor
& Immerman,
2nd
respondent's legal practitioners
1.
At 916g-h
