NOT REPORTABLE 
OF INTEREST TO OTHER JUDGES

IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between: 

 and

JUDGMENT

GAUNTLETT, AJ:

This is an application to set aside a subpoena.

The subpoena was the second of its kind, but in slightly wider terms than an earlier variant, issued on 25 August 2008 and withdrawn on 4 September 2008. The withdrawal had followed telephonic discussions between MTN and the RAF's attorneys, and in a letter dated 1 September from the latter to the former. The letter drew attention to constraints imposed by law on MTN's ability to provide customer records, by specific reference to MTN's license, the Electronic Communications Act, 36 of 2005, and the Regulation of Interception of Communications and Provision of Communication - related Information Act, 70 of 2002. The letter concluded:

"The contravention carries a heavy fine of not more than R5miilion in [the] case of our client and up to R2 millon or a jail term of not more than 10 years in respect of our .... client's employees. Even the taw enforcement agencies cannot easily obtain the information your client seeks without following the strict procedure contained in various statutes.

in the light of the explanation provided above we are instructed to request your client to withdraw the subpoena formally with in th re e da ys fro m today. Should your client fail to do so our client will launch an urgent application to set aside the subpoena. Furthermore our comments herein should not be made as an admission of the validity of the subpoena or the service thereof.

We await hearing from you urgently and our client's rights are hereby fully reserved."

The first subpoena was thereafter withdrawn. The RAF asserts in its papers that this was not done by way of reaction to the telephonic discussions, or the letter to which reference has been made. It is not necessary to determine whether or not this is plausibly so.

On Friday 5 September there were two developments. The first is that it became apparent that no judge could be aflocated for the trial action due to commence on Monday 8 September. This fact, it is common cause, was not communicated to MTN's attorneys -whether through their failure to respond to telephone messages allegedly left for them by the RAF's attorneys', or by the RAF's attorneys' failure in the circumstances to convey the information via fax or e-mail once it was clear that MTN's attorneys could not be reached telephonically.

The second development was that the subpoena in issue now was issued and served that day.

MTN's attorney flew to Cape Town in response on Monday 8 September. MTN launched and served an urgent application on that day to set aside the subpoena on several grounds. These included its contended vagueness (as noted, it was addressed to "The Manager/Director" of MTN, which, as might be expected from a national telecommunications operator and listed company, has many who fit that description); and furthermore it gave unreasonable notice, especially in regard to the volume of information which would be required to be extracted and collated and the need to comply simultaneously with the legal limitations on disclosure to which I have referred.

When no judge was forthcoming on Monday 8 September to deal with the application or the trial pending between the second respondent and the RAF, by consent the present application to set aside the subpoena was postponed to today, with directions as to the filing of papers and argument.

The RAF responded to the founding papers - short and to the point - with some 180 pages of answering affidavits and annexures. Little of all this is remotely relevant to three basic issues. The first is whether the subpoena is valid on its face, regard being had to the various grounds of attack specified in the founding affidavit. The second is whether it in any event unenforceable in the absence of a tender of witness fees. The third, most simply, is whether an unreasonable period of time was allowed for the extraction of the documentation and for the various legal hurdles relating to disclosure to be addressed.

Ultimately in oral argument today counsel for the RAF conceded that the time allowed to respond to the subpoena was "inherently unreasonable". The concession was correctly made, ft should however have been made, forthrightly, in the answering affidavits, or at least the heads of argument. Instead the former are replete with its relevancies to the central issues, personalised skirmishing, and the most irresponsible burdening of the record. The heads of argument filed for the RAF equally failed to grasp the nettie of unreasonably short notice; it is unfortunate that it should only have been in the course of oral argument that the most obvious fundamental in the case should have been recognised and conceded.

In my view the argument lacks any responsible foundation. This is so for several reasons.

When MTN's attorney had not replied to the telephone messages which it is said were left for him, a simple step woufd have been to e-mail or fax him in the course of Friday 5 September to ensure that the changed circumstances had been communicated.

MTN in its papers had intimated, too, an application to strike out. In the event, however, that this was not lodged or argued, and not time taken up in oral debate by it, and I was merely invited to regard certain criticised passages as irrelevant.

MTN has asked for a special order as to costs. In my view, costs orders of this kind shoutd be sparingly granted. I am however persuaded that in the circumstances of this particular matter the conduct of the RAF in this Fit rg at ion has been unreasonable, and markedly so. Only in oral argument has the time allowed for compliance with the subpoena, given its amplitude, and the legal restraints on confidentiality, been conceded to be wholly unreasonable. The attempt still to defend the application on the basis that it was "not necessary" for the litigant threatened with criminal sanctions to appear, has no responsible basis. The attachments to the answering affidavit were unnecessary in the extreme.
Whether through point of pride, or professional antagonism, or simple obduracy, unnecessary costs have been generated since 8 September, notwithstanding the fact that on that day - it seems -the RAF itself came to the conclusion that the subpoena was "moot". The scale on which paper has been generated in this matter, baseless argument advanced, and this hearing necessitates, are all exacerbating features.

Although both sides engaged two counsel the issues were anything but matters warranting the costs of two counsel. Correctly no claim was made in this regard.

The order I accordingly make is as follows:
1.	
2.	The application to strike out by the first respondent is dismissed;
3.	In relation to 1 and 2 above, the first respondent is directed to pay costs on the scale of attorney and client.