In order to answer this question, we firstly have to examine the definition of an expert witness. The expert witness is a witness who qualifies himself as an expert in a clearly defined field. The expert is independent and impartial, and his evidence is limited to the extent of his knowledge, experience and expertise. The expert may rely on factual information to draw a conclusion, which is then given as expert opinion.
The ordinary witness, on the other hand, is an individual who will provide evidence as to the facts of a particular case. This could be the driver of a motor vehicle explaining how a motor vehicle collision occurred, a doctor describing the treatment provided while a person was hospitalised, or an employer confirming employment of an individual. The common thread is that they give factual evidence.
Section 30(1) of the Supreme Court Act 59 of 1959 states that that a party to civil proceedings that requires a witness’s attendance or the production of a document, at the court proceedings may do so by way of issuing a subpoena. In this regard we have the “normal” subpoena to secure a witness at court and a subpoena duces tecum to request that documentation is brought to court.
Section 30(2) further indicates that if the person so subpoenaed fails to appear in court or produce the document that is required, and it appears that the subpoena was served on him and his reasonable expenses calculated in accordance with the tariff framed under section 42(1) have been paid or offered to him, the court may issue a warrant directing that he be arrested and brought before the court at a time and place stated in the warrant or as soon thereafter as possible.
Section 30(3) goes on further to state that the person arrested under the warrant may be detained at court or in a jail or lock-up or other place of detention or in the custody of the person who is in charge of him, with a view to securing his presence as a witness or to produce any document or thing at the said proceedings.
Finally section 30(4) states that the court, if not satisfied as to the reason for the person evading the subpoena or for not appearing in court or not producing the document, may impose a fine or to imprisonment not exceeding three months.
Having regard to section 30, the subpoena is a legal instrument that is employed to secure a witness’s presence at court and pronounces penalties, should the witness fail to adhere to the subpoena. The section makes no distinction as to whether the witness is an ordinary witness or an expert witness. If one takes a closer look at the provisions, the conclusion that one draws is that the provision can only be intended to apply to ordinary witnesses.
Firstly an expert, who establishes himself as an expert, must know that the opinion he expresses can be challenged and must be prepared to defend this opinion.
In this regard, once the expert is engaged in a matter, the attorney will serve and file a notice in terms of Rule 36(9)(a) of the Uniform Rules of Court advising the court and their opponent of the name and occupation/field of expertise of the expert to be called in the matter. This notice is done in advance of the trial date but not less than 15 days prior to trial.
Once the expert furnishes his/her report, the report or a summary thereof is then served and filed under cover of a notice in terms of Rule 36(9)(b) of the Uniform Rules of Court. This can be filed at any time after the Rule 36(9)(a) notice but not less than 10 days prior to the trial.
This is not done for the ordinary witness. The parties may know who is being called to give factual evidence, but there is no specific requirement that notice should be provided to the court or to the other party of the particularity of that witness’s testimony. The ordinary witness is merely subpoenaed.
Secondly, section 30(2) read together with the various appendices provides various guidelines regarding the reasonable costs of securing a witness’s attendance at trial. This includes a R50 meal allowance, costs of “reasonable” accommodation, R1.30 per kilometre in respect of reimbursed travel and a stipend of not more than R1 500.
What this means is that if an attorney is to subpoena a witness to court then a cheque for travelling, accommodation, meals and loss of income must be attached to the subpoena or the amount must be agreed and must be tendered to the witness.
However, if an attorney should choose to subpoena an expert witness then it is not very practical to attach a cheque for this amount to secure your expert at trial. Firstly, as simplistic as it sounds, you cannot attach a R50 cheque to your subpoena. Secondly, apart from very limited instances it is not practical for an attorney to pay out or tender thousands of rands each time he has to go to court in a matter.
Further there is no known expert that charges on the tariff and who will accept payment as per the tariff. Expert witnesses are usually professionals – who charge professional rates. It is therefore highly unlikely that any expert would agree to be bound by the R1 500 stipend limitation.
Finally, the penalty for a witness not attending court is a fine or imprisonment. Is this really what we want to do to our professionals? Compelling experts to testify under threat of imprisonment only serves to alienate the legal fraternity even further. This could not have been the intention of the legislation.
A simple timeous request to the expert’s availability should be all that is required. Most experts will indicate their availability and the costs for them to be at court. It stands to reason that when an attorney engages an expert, that the expert opinion is required for a litigious matter and so by agreeing to provide an opinion the expert consents to being available to defend their opinion in court.