What Does Subpoena Mean?

A subpoena in South Africa is a formal, court-issued order that compels a person either to attend court to give evidence (a subpoena to testify, sometimes called a subpoena ad testificandum) or to produce specified documents or records (a subpoena duces tecum). In criminal matters, subpoenas are issued under section 205 of the Criminal Procedure Act 51 of 1977; in civil matters, they are issued by the registrar or clerk of the court under the Uniform Rules of Court and the Superior Courts Act 10 of 2013. A subpoena differs fundamentally from a US-style subpoena: in South Africa it is a court document, served formally (typically by a sheriff), and failure to comply is treated as contempt of court, which can result in a warrant for the witness’s arrest and, in serious cases, a fine or imprisonment.

Where the Word Comes From

The word “subpoena” is Latin: sub (under) + poena (penalty) — the order carries an implicit penalty for non-compliance. The same root gives English its word “punish”. In modern South African legal practice, the accepted plural is “subpoenas” (not the Latin “subpoenae”). The penalty lurking inside the word is not decorative: in South Africa, the consequences of ignoring a properly served subpoena are real and enforceable.

The Basic Definition

A subpoena is a formal written order issued by a court, magistrate, or registrar requiring a named person to do one of the following:

• Attend court on a specified date and time to give evidence.
• Produce specified documents, books, or records at a specified time and place.
• Both attend court and bring specified documents.

A subpoena is not a request and it is not an invitation to give evidence voluntarily. It is a compulsory legal instruction backed by the authority of the court that issued it. The witness has no discretion to refuse simply because attendance is inconvenient — the only proper response is to comply, or to apply to the court to set the subpoena aside before the date of attendance.

The Two Main Types

Type	What it requires
Subpoena to testify (subpoena ad testificandum)	The witness must attend court on a stated date and time and give evidence on a specified matter.
Subpoena duces tecum	The recipient must produce specified documents or records at the time and place stated in the subpoena.
Combined subpoena	A single subpoena may require a witness both to attend and to bring documents — the two forms overlap in South African practice.

Both forms may be issued from the same court document, depending on what the court has ordered.

Who Can Issue a Subpoena in South Africa

The issuing authority depends on the type of matter:

Matter type	Who issues the subpoena	Authority
Criminal matters	The magistrate, regional magistrate, or judge before whom the proceedings are pending, or the clerk of the court / registrar acting under that judicial officer’s authority.	Section 205 of the Criminal Procedure Act 51 of 1977.
Civil matters in the High Court	The registrar, on the request of a party to the litigation.	Uniform Rules of Court (Rule 38).
Civil matters in the Magistrates’ Court	The clerk of the court, under the rules applicable to that court.	Magistrates’ Courts Act 32 of 1944 and related rules.

A South African attorney on their own authority cannot issue a subpoena — this is a material difference from US practice, where an attorney can issue a deposition subpoena. In South Africa the document must come from the court. Where a subpoena has been received by someone who suspects it was not properly issued, legal advice should be sought before the date of attendance.

How a Subpoena Is Served

Service must be personal — handed to the named witness in person — for the order to take effect against that witness. Service is normally effected by a sheriff of the court (or a deputy sheriff) for the district in which the witness resides or works, who signs a return of service confirming when and where the document was delivered.

Substituted service (for example, leaving the subpoena with a household member or at the witness’s workplace) is generally not sufficient to found a warrant for arrest if the witness later fails to appear. The witness is also entitled to a reasonable opportunity to comply — last-minute service immediately before the hearing is, on its own, a ground on which to challenge a warrant later.

What Happens If You Ignore a Subpoena

The consequences escalate quickly:

• Contempt of court. Failure to comply is treated as contempt of court.
• Warrant of arrest. The court may issue a warrant for the arrest of the witness, and the witness may be brought to court in custody.
• Detention until testimony is given. A witness who attends but refuses to give evidence without lawful justification may be imprisoned, fined, or detained until they agree to testify.
• Separate criminal liability. A witness who produces documents that turn out to be false or fabricated may face criminal charges for fraud or perjury, in addition to any contempt finding.

There is no automatic “right” to refuse. Even inconvenient or intimidating subpoenas require either a court order setting them aside or a valid legal objection raised at the time of testimony. Recipients who plan to ignore a subpoena should be aware that courts will ordinarily look for evidence of a properly served subpoena (the sheriff’s signed return of service) before authorising arrest.

When a Subpoena Can Be Set Aside or Challenged

A witness can approach the issuing court (or the court before which attendance is required) to apply for the subpoena to be set aside or varied. Common grounds for setting aside include:

• The subpoena is an abuse of process.
• It seeks irrelevant material.
• The witness is genuinely unable to attend due to illness or other good cause.
• The witness’s evidence is privileged.
• The documents sought are protected by legal professional privilege.

An attorney should be consulted promptly — once a subpoena has been properly served, the clock on compliance starts ticking and late objections are harder to sustain. If the subpoena relates to a criminal case, a witness may also approach the prosecutor or investigating officer to discuss whether attendance is strictly necessary; this does not cancel the subpoena itself.

Burger Huyser Attorneys fields subpoenas work — applications to set aside, varied compliance, and attendance disputes — through its general litigation and criminal law practices, with offices in Linden (Randburg), Roodepoort, Sandton, Bedfordview, Centurion, Pretoria, Alberton, and Midrand.

Practical Considerations: Travel, Costs, and Time Off Work

A few practical points recipients often overlook:

• Witness fees. A witness subpoenaed to attend in a town other than where they live or work is entitled to reasonable witness fees — transport, subsistence, and a daily attendance allowance. In civil matters these are usually paid by the party who requested the subpoena; in criminal matters the State generally pays. The exact tariff is set out in the applicable court rules and the sheriff’s tariff.
• Employment protection. An employer may not lawfully penalise an employee for complying with a subpoena. Dismissal for attending court in response to a valid subpoena would in most circumstances amount to an unfair dismissal under the Labour Relations Act 66 of 1995.
• Keep the document safe. The subpoena, the sheriff’s return of service, the date and time stated, and any covering documentation are useful if the matter is later challenged.

Subpoena vs Related Concepts

Several terms sound similar but have distinct legal meanings:

Term	Difference from a subpoena
Summons	The document that starts civil proceedings against a defendant. A subpoena, by contrast, compels a third party (not a party to the litigation) to participate.
Witness summons	In South African practice the two terms are used interchangeably — there is no separate procedure under that name. “Subpoena” is the formal term in both the Criminal Procedure Act 51 of 1977 and the Uniform Rules of Court.
Warrant of arrest	The consequence that may follow non-compliance with a subpoena, not a separate pre-existing court order.
Notice to appear (criminal matters)	A police-issued notice under section 35 of the Criminal Procedure Act is an informal invitation; a subpoena is a court-issued compulsory order with very different consequences.

Subpoenas in South Africa: What Every Recipient Should Know

Frequently Asked Questions

What does subpoena mean in simple terms?

A subpoena is a formal court order that tells a person they must come to court to give evidence, or must hand over specific documents by a certain date. It is not optional — ignoring it can lead to arrest for contempt of court. In South Africa it is always issued by a court, not by an attorney.

Can a lawyer issue a subpoena in South Africa?

No. In South Africa, subpoenas are issued by the court itself — by the magistrate, judge, registrar, or clerk of the court. An attorney can ask the court to issue one on behalf of a client, but the document itself comes from the court. This is different from US practice, where an attorney can issue certain subpoenas directly.

What happens if I don’t respond to a subpoena?

The court can issue a warrant for your arrest and have you brought to court in custody. You may also be found guilty of contempt of court, which can carry a fine or imprisonment. The correct approach if you cannot comply is to apply to the court to set aside or vary the subpoena before the date you are meant to attend.

Do I get paid for attending court on a subpoena?

Yes, in most cases you are entitled to reasonable witness fees — covering transport, subsistence, and a daily attendance allowance. In civil matters these are usually paid by the party who requested the subpoena; in criminal matters the State generally pays. The exact tariff is set out in the applicable court rules and the sheriff’s tariff.

Can my employer fire me for attending a subpoena?

Generally no. A valid subpoena is a legal obligation, and dismissing an employee for complying with it would in most circumstances amount to an unfair dismissal under the Labour Relations Act 66 of 1995. Employees should give their employer reasonable notice of the dates they will be in court and present the subpoena on request.

How is a subpoena served in South Africa?

It must be served personally on the named witness, normally by the sheriff of the court. Service is proved by the sheriff’s signed return of service. Substituted service — leaving the document with someone else or at the witness’s home or work — is usually not enough to justify an arrest warrant if the witness then fails to attend.

Can a subpoena be challenged or cancelled?

Yes. A witness can apply to the issuing court (or the court before which attendance is required) to set aside or vary the subpoena on grounds such as irrelevance, abuse of process, legal professional privilege, or genuine inability to attend. Legal advice should be sought as soon as the subpoena is received, because once a subpoena has been validly served the obligation to comply begins immediately.

Is a subpoena the same as a witness summons?

In South African practice the two terms are used interchangeably — there is no separate “witness summons” procedure. “Subpoena” is the formal term used in both the Criminal Procedure Act 51 of 1977 and the Uniform Rules of Court.

If you have received a subpoena and are not sure what it requires of you — or if you need to apply to have it set aside, varied, or paused — Burger Huyser Attorneys can advise. The firm fields this work through its general litigation practice (criminal and civil), with offices in Linden (Randburg), Roodepoort, Sandton, Bedfordview, Centurion, Pretoria, Alberton, and Midrand. The fastest first point of contact is the Linden head office on 011 888 0246 (after-hours 061 516 6878), or the branch closest to where you live or work. Mention the date you are due to attend when you call so the matter can be prioritised.