Do you know what the legal term subpoena duces tecum mean and what the consequences are in the event of failing to obey by the subpoena once served on yourself? If you are not aware of the meaning of the term as well as the consequences in event of failure to obey by it, then this article is specifically for you.

A subpoena duces tecum can be defined as a technique used by a party to obtain access to items that are in possession of persons who are not parties to the case, with the ultimate aim to strengthen his/her case by getting the necessary access to the documents or other items of physical evidence. In terms of High Court Rule 38(1)(a) it states that: “if any witness is in possession or control of any deed, document, book, writing, tape recording or electronic recording (hereinafter referred to as a ‘document’) or thing which the party requiring the attendance of such witness desires to be produced in evidence, the subpoena shall specify such document or thing and require such witness to produce it to the court at the trial”.

The abovementioned High Court rule is a clear example of the term subpoena duces tecum, as the Latin words ‘duces tecum’ literally means to “bring with you”. Once a subpoena duces tecum has been served upon yourself, the rules of court require that you should as soon as possible abide by the subpoena and hand over to the registrar the deed, document, writing or tape recording so requested. The main reason to hand it over as soon as possible is for the parties requesting it, to be able to inspect the documents and to prepare sufficiently for trial.

Your failure to comply with the served subpoena will have some serious consequences attached to it. These consequences are set out in Section 35 of the Superior Courts Act 10 of 2013 (”the act”) and read as follows:

“Whenever any person subpoenaed to attend any proceedings as a witness or to produce any document or thing— (a) fails without reasonable excuse to obey the subpoena and it appears from the return of the person who served such subpoena, or from evidence given under oath, that— (i) the subpoena was served upon the person to whom it is directed and that his or her reasonable expenses calculated in accordance with the tariff framed under section 37(1) have been paid or offered to him or her; or (ii) he or she is evading service; or (b) without leave of the court fails to remain in attendance, the court concerned may issue a warrant directing that he or she be arrested and brought before the court at a time and place stated in the warrant or as soon thereafter as possible.

A person arrested under any such warrant may be detained thereunder in any prison or other place of detention or in the custody of the person who is in charge of him or her, with a view to securing his or her presence as a witness or production of any document or thing at the proceedings concerned: Provided that any judge of the court concerned may release him or her on a recognisance with or without sureties to attend as a witness or to produce any document or thing as required.    

Any person subpoenaed to attend any proceedings as a witness or to produce any document or thing who fails without reasonable excuse to obey such subpoena, is guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.

If a person who has entered into any recognisance in terms of subsection (3) to attend such proceedings as a witness or to produce any document or thing fails without reasonable excuse so to attend or to produce such document or thing, he or she forfeits his or her recognisance and is guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.”

One of the most important points to take cognizance of when it comes to having been served with a subpoena duces tecum, is to ensure that the document is well particularised. A witness must have no doubt as to what is expected of him/her to produce after perusal of the document, and is protected by section 36(4) of the act, which hold that “no person is bound to produce any document or thing not specified or otherwise sufficiently described in the subpoena duces tecum”.

Subpoena Duces Tecum