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 ...
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 section 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 the first
respondent wanted to force the appellants to produce is in the
possession of the second respondent and the 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
the 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 the
appellants' right to the protection of the law....,.
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 section
6 of the Fiscal Appeal Court 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 & Anor
1987 (2) ZLR 302 (SC) 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..., where CORBETT J..., 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..., 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 section 6 of the Fiscal
Appeal Court 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
1987 (2) ZLR 302 (SC).
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.