Judgment No. SC 47/18
Civil Appeal No. SC 695/15
some of it may prove useful. An order for the production of documents under such subpoena should
not be given unless the court is of the opinion that the documents are necessary for disposing fairly
of the cause or matter. The impugned subpoena is a dragnet sweeping every fish in its path to see
if a particular species turns up in the net. The subpoena does not pass the test of bona fides. Even
though a litigant is entitled to seek the production of documentation that he alleges would be vital
in the prosecution of his case, the request for such production must relate to the dispute which is
being litigated. There can be no justification for a subpoena that defies the rules for relevance in
court proceedings.
The contention by the appellants that the subpoena is an exercise in mischief would
appear to be well founded. It is an established principle that the purpose of a subpoena duces tecum
is that of obtaining evidence and is not meant for purposes of obtaining mere discovery which
might lead to something else. The appellants are being asked to discharge a duty which should
rightfully in this case fall upon the second respondent.
The view I take is that in casu, the subpoena does not constitute a genuine exercise by
a litigant to prosecute a dispute. It was not shown in the court below that the subpoena, wide as it
is, was necessary for disposing fairly of the cause or matter. It cannot be allowed to stand in the
circumstances because it is clearly an abuse of process and the court has inherent power to prevent
this abuse. — see Makaruse v Hide and Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S).
The court a guo therefore erred in failing to find that the subpoena was an abuse of
process.
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