Cave v Johannes, NO and Others

• Jurisdiction: South Africa
• Citation: 1949 (1) SA 72 (T)

Cave v Johannes, NO and Others
1949 (1) SA 72 (T)

1949 (1) SA p72

Citation	1949 (1) SA 72 (T)
Court	Transvaal Provincial Division
Judge	Ramsbottom J and De Villiers J
Heard	August 27, 1948
Judgment	August 27, 1948

Flynote : Sleutelwoorde

Criminal procedure — Trial — Preparatory examination in process — Subpoena on Crown witness to procure documents — Whether validity of subpoena affected — Whether subpoena can be struck out on the ground it is too vague — Section 67 of Act 31 of 1917 — Scope of — Document owned jointly or by witness' master — Whether privileged from production.

Headnote : Kopnota

The fact that the Crown is still leading evidence at a preparatory examination at a time when the defence has caused a subpoena to be issued calling upon a Crown witness to produce certain documents does not affect the validity of the subpoena.

There is nothing in section 67 of Act 31 of 1917 which requires the documents, which a witness has been called upon to produce, to be specified in any particular way. But failure to produce a document may be excused if the document or thing is not specified or otherwise sufficiently described in the subpoena. There is no provision for setting aside or striking out a subpoena on the ground that it is too vague.

The question whether a document has not been sufficiently described arises at the time the document is called for and not before.

A witness, who has been called upon to produce a document, cannot claim privilege because the document which he has in his possession may belong to a master or may belong to him jointly with a partner.

Case Information

Applications to set aside certain rulings made by a magistrate during a preparatory examination. The facts appear from the reasons for judgment.

V. E. Quenet, K.C. (with him, A. M. Hofmeyr), for the applicant: An accused person has no right to lead evidence before the charge has been put to him, Act 31 of 1917, sec. 74. It is not competent for the defence to subpoena applicant and lead his evidence for the defence. One cannot by way of a subpoena in general terms order a witness to produce documents. There is no objection to para. 1 of the subpoena but para. 2 is too wide and too vague and para. 3 is also too wide. See Act 31 of 1917, sec. 67 (3); Phipson, Evidence, (6th ed., chap. XXXVIII, s.v. subpoena duces tecum); Lee v Angas (L.R. 2 Eq., at p. 63); Attorney-General v Wilson (59 E.R. 461; Halsbury Laws of England, vol. 13 (Hailsham ed., sec. 811); Wigmore, Evidence (3rd ed., vol. 8, p. 116). The documents called for are held by applicant either for his principal or in joint ownership

1949 (1) SA p73

with his partner. Attorney-General v Wilson (supra); Halsbury (supra, vol. 10 Hailsham ed., sec. 480); Eccles & Co v Louisville and Nashville Railroad Company (1912 (1), K.B. at p. 144). Sec. 64 is a procedural section and must be read subject to all the objections which are ordinarily competent. See also Crowther v Appleby (L.R. 9 C.P. 23 at p. 28); Rex v Daye (1908 (2), K.B. 333); Forbes v Samuel (1913 (3), K.B. at p. 722). In order that a magistrate at a preparatory examination may order production of a document either a subpoena must be issued or the witness must have the document with him. See sec. 67 (3); Gardiner & Lansdown (5th ed., vol. I, 221); and cf. sec. 64 (2); the magistrate must first have satisfied himself as to the relevance of the document to be produced before directing issue of the subpoena.

No appearance for the first respondent, the magistrate.

O. Galgut (with him S. Bekker and C. D. J. Theron) for the second respondent, the Attorney-General: The Crown adopts a neutral attitude. The applicant did not have the documents in his possession in Court.

N. E. Rosenberg, K.C. (with him, G. Lowen), for the third respondent: The applicant said in evidence that he had the documents I wanted but refused to produce them because Benson refused. We are asking the magistrate for an order that the cross-examination should proceed in a proper manner. Under the Criminal Code any person in physical possession of a document can be subpoenaed to produce it. This application is without substance, and I ask for attorney-and-client costs.

D. Gould, K.C. (with him, I. A. Maisels, K.C.), for the fourth respondent: (1) The issue of a subpoena in a preparatory examination is governed by sec. 64 of Act 31 of 1917 and Rule 8 of the 5th Schedule to the Act. No special formalities are prescribed for its validity. It merely aims at securing the attendance of a witness either ad testificandum or duces tecum or both. Hull v Minister of Justice (1932 TPD at p. 140). The subpoena was not prematurely issued; sec. 64 imposes no limitations as to time. It is open to an accused person to issue a subpoena at any time; he need not wait until the Crown closes its case; documents in possession of one person may be required for the purpose of cross-examining another person called by the Crown.

Nor can a subpoena duces tecum be set aside on the ground that it is void for vagueness. If the description of the documents

1949 (1) SA p74

required is too wide compliance therewith will not be enforced. Lee v Angas (ubi sup.); Wigmore, Evidence (ubi sup., note 7); Phipson, Evidence, 8th ed., 436. The remedy of the person subpoenaed is to attend Court and seek to excuse his non-compliance.

The further question whether the documents required are relevant or admissible can have no bearing on the validity of the subpoena as such. Questions of relevancy and admissibility must be determined by the Court when the documents are tendered in evidence. Wigmore (supra, 117); Gardiner & Lansdown (supra, 464); Hull's case (supra).

Finally, the fact that the documents required are the property of the witness' employer or partner is immaterial. By sec. 64 a person is required to bring documents to Court if they are actually or potentially in his physical possession.

(2) The production of documents is governed by sec. 67. Physical possession and not ownership is the test. Angas' case (supra at pp. 63, 64); Wigmore (supra, at p. 119); Amey v Long (1 Camp. 14); Ackerman v Lockhard (1898 (2), Ch. D. at p. 7). In any event, the cases cited by the applicant do not apply to the production of documents in criminal proceedings. Rex v Daye (supra at p. 338).

Quenet, K.C., in reply, referred to Waddell v Eyles, N.O. and Welsh, N.O. (1939 TPD 198).

Judgment

Ramsbottom, J.:

A preparatory examination is being conducted before a Johannesburg magistrate in which the third and fourth respondents to this application are the accused persons. A witness by the name of Ronald Cave was called to give evidence on behalf of the Crown. On 19th August a subpoena was issued at the instance of the fourth respondent directed to the messenger of the court requiring him to summon Ronald Cave to appear personally before the Court at Johannesburg on 25th August, 1948, to testify and declare all that he knows concerning a certain charge preferred by the public prosecutor against Joseph Milne and Norbert Stephen Erleigh, both of Johannesburg. The subpoena also required the said Cave to bring with him and produce to the said court at the same time aforesaid the documents set forth in the schedule annexed and marked 'A'.

This schedule contained four paragraphs. The first paragraph specified a certain affidavit. Nothing arises out of that paragraph and it need not be mentioned further. The second paragraph is in the following terms:

1949 (1) SA p75

Ramsbottom J

'Copies of all letters written by him, the said Cave, during the period 1st June, 1947, to 30th June, 1948, to

(i)

Certain Henry Benson,

(ii)

John Todd or Messrs. Towe Swann & Co.,

(iii)

Cooper Bros. of London, and

(iv)

Messrs. Roberts, Allsworth, Cooper Bros. & Co. or to any individual partner in or employee of the said firm,

relating to or dealing with the affairs of

(a)

The New Union Goldfields, Limited.

(b)

The said N. S. Erleigh, and

(c)

The said J. Milne.'

Para. 3 reads:

'All memoranda, notes and reports made by him, the said Cave, about or concerning the affairs of

(a)

The New Union Goldfields.

(b)

The said N. S. Erleigh, and

(c)

The said J. Milne,

during the said period 1st June, 1947, to 30th June, 1948.'

Para. 4 is not material in the present application.

It so happened that Mr. Cave was recalled by the Crown and was in the witness box when the court rose on the 24th August. On the 25th August, he was again in the witness box for his examination to be continued. On that occasion, Mr. Quenet appeared before the magistrate, representing Cave, and he made an application to the magistrate to rule that the subpoena, which had been issued, was void for certain reasons or alternatively to strike out certain of the paragraphs in the schedule.

The application was based upon various grounds which appear from the short judgment that the magistrate gave when giving his ruling. We have been furnished with a copy of the verbatim record of the proceedings and the magistrate's ruling appears on page 2387. The magistrate said:

'A subpoena appears to have been issued on the 19th August calling upon one Ronald Cave to produce to-day, 25th August, certain documents. Objections have been made on behalf of Mr. Cave by Mr. Quenet in regard to the validity of this particular document and the first point taken was that the subpoena was issued on Mr. Cave because the Crown case has not been closed.' (Sic.) 'He is a Crown witness, he was in the course of giving evidence, and by the issue of the subpoena he was, in effect. a witness for the defence. Sec. 64, as I read it, empowers the defence to call upon a witness to produce at any time and that ground put forward by Mr. Quenet falls away. In regard to...