Brynard v Mogwele Waste (Pty) Ltd (C415/2014) [2015] ZALCCT 49 (24 July 2015) per Steenkamp J.
In the Labour Court the applicant claimed to have been dismissed for an unfair reason based on operational requirements, whereas the employer alleged a mutual separation. The employer counter-claimed for damages exceeding R4m. The applicant subpoened a director of the employer to produce financial statements at the trial. The employer’s urgent application to set aside the subpoena was refused as it was not an abuse of process.
Note: Overturned on appeal to LAC but effectively reinstated by LAC in 2020.
Subpoena set aside: Discovery should have been compelled
The LAC allowed the employer’s appeal and reversed the order of Steenkamp J in the Labour Court and set aside the subpoena issued by the Registrar on 23 April 2015. The objective of LC rule 6(9) is to enable litigants to ‘discover’ documents that the other party possesses or controls. A subpoena enables litigants to obtain documents that non-parties possess. Litigants who use the wrong procedure abuse the court process.
Mogwele Waste (Pty) Ltd v Brynard [case no: CA15/15] 20 April 2016 per Murphy AJA ( Waglay JP and Tlaletsi DJP concurring)