Antonsson and Others v Jackson and Others

JurisdictionSouth Africa
Citation2020 (3) SA 113 (WCC)

Antonsson and Others v Jackson and Others
2020 (3) SA 113 (WCC)

2020 (3) SA p113


Citation

2020 (3) SA 113 (WCC)

Case No

18587/2018

Court

Western Cape Division, Cape Town

Judge

De Vos AJ

Heard

April 26, 2019

Judgment

April 26, 2019

Counsel

K Reynolds for the applicants.
J-H Roux SC
(with J Foster) for the respondents.

Flynote : Sleutelwoorde

Evidence — Subpoena duces tecum — Application to set aside by non-recipient — Locus standi to challenge subpoena on ground of irrelevance — Superior Courts Act 10 of 2013, s 35(1), s 36(5).

Practice — Trial — Witnesses — Subpoena duces tecum — Application to set aside by non-recipient — Locus standi to challenge subpoena on ground of irrelevance — Superior Courts Act 10 of 2013, s 35(1), s 36(5).

Practice — Applications and motions — Dispute of fact — Referral for oral evidence — Cross-examination of witnesses — Permissible scope — Use of documents.

Headnote : Kopnota

The principal parties in this interlocutory application, Messrs Jackson and Antonsson, were involved in motion proceedings against each other. There were applications and counter-applications, including opposing delinquency applications under s 162(5)(c) of the Companies Act 71 of 2008. There were allegations of dishonesty and mala fides from both sides, among them that Antonsson fabricated the evidence in his delinquency application with the ulterior motive to conceal his own misconduct. The presiding judge referred the application for oral evidence on several issues.

Jackson issued subpoenas duces tecum directed at various non-litigant witnesses. In the present application Antonsson requested the court to set aside the subpoenas because the requested documents were irrelevant and the subpoenas an abuse of process. Jackson in turn contested Antonsson's locus standi, arguing that the application to set the subpoenas aside should come from the witnesses, not a party to the proceedings. Jackson argued that Antonsson could himself challenge the subpoenas only on the ground of abuse of process, not the irrelevance of the documents.

Section 35(1) of the Superior Courts Act 10 of 2013 (the Act) empowers a party to secure the attendance of witnesses and the production of documents at proceedings. Section 36(5)(c) of the Act allows a judge to cancel a subpoena if it constitutes an abuse of process.

Held

Documents were relevant if they contained information which could, either directly or indirectly, enable the party who sought them to advance his or her case or damage the opponent's case (see [47] – [48]). A party to litigation (like Antonsson) did have locus standi to challenge a subpoena on the ground that the documents called for were irrelevant (see [60]). Abuse of process was not required, but if it were shown that the documents were clearly irrelevant, then the subpoena would usually also amount to an abuse (see [60] – [61]). Therefore Antonsson had locus standi to challenge the relevance of the documents in order to show that their irrelevance constituted an abuse as intended in s 36(5)(c) of the Act (see [62] – [63]).

At the heart of the delinquency application was the question whether Antonsson had fabricated evidence to conceal his own misconduct (see [67]). Documents that showed fabrication, or the ulterior motive behind it, were relevant and could be put to Antonsson during cross-examination (see

2020 (3) SA p114

[69] – [72]). And even if the motive were a collateral issue, then the documents could still be used to cross-examine Antonsson to his credit (see [87] – [89], [92]).

Courts should be slow to allow one party to prevent another from gaining access to information, which was what Antonsson was attempting by this application (see [119]). Since he failed to prove that the listed documents were irrelevant or could be obtained through normal discovery, or that the subpoenas were an abuse of the process, the interlocutory application would be dismissed (see [127] – [128].)

Cases cited

Southern Africa

Beinash v Wixley 1997 (3) SA 721 (SCA) ([1997] 2 All SA 241; [1997] ZASCA 32): applied

De Beer NO v North-Central Council and South-Central Council and Others (Umhlatuzana Civic Association Intervening) 2002 (1) SA 429 (CC) (2001 (11) BCLR 1109; [2001] ZACC 9): dictum in para [11] applied

Drummond v Drummond 1979 (1) SA 161 (A): dictum at 170H applied

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) ([2006] ZASCA 52): dicta in paras [63] – [64] applied

Gavric v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC) (2019 (1) BCLR 1; [2018] ZACC 38): dictum in para [79] applied

Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) (2008 (8) BCLR 771; [2008] ZACC 6): dictum in para [25] applied

Lekup Prop Co No 4 (Pty) Ltd v Wright 2012 (5) SA 246 (SCA): dictum at 258I applied

Lewis Group Ltd v Woollam and Others 2017 (2) SA 547 (WCC): dictum in para [18] applied

Meyers v Marcus and Another 2004 (5) SA 315 (C): approved and followed

Msimang NO and Another v Katuliiba and Others [2013] 1 All SA 580 (GSJ): dictum in para [27] applied

Mvelaphanda Holdings (Pty) Ltd and Another v JS and Others 2016 (2) SA 266 (GJ): compared

PFE International and Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC) (2013 (1) BCLR 55; [2012] ZACC 21): dictum in para [39] applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) ([1984] 2 All SA 366; [1984] ZASCA 51): referred to

R v Kalkiwich and Kruger 1942 AD 79: dictum at 87 applied

R v Mpanza 1915 AD 348: dictum at 352 applied

Rath v Rees 2007 (1) SA 99 (C): dictum in para [41] applied

Rellams (Pty) Ltd v James Brown & Hamer Ltd 1983 (1) SA 556 (N): dictum at 564A – B applied

S v Green 1962 (3) SA 886 (A): dictum at 894 applied

S v Sinkankanka and Another 1963 (2) SA 531 (A): dictum at 539E applied

S v Zwane and Others 1993 (3) SA 393 (W): applied

Sher and Others v Sadowitz 1970 (1) SA 193 (C): dictum at 195D applied

South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) Ltd and Others 2007 (6) SA 628 (D): criticised and not followed

Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T): dictum at 316G applied

2020 (3) SA p115

Wepener v Norton 1949 (1) SA 657 (W): dictum at 659A applied.

England

Compagnie Financiére et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (CA): referred to.

Case Information

K Reynolds for the applicants.

J-H Roux SC (with J Foster) for the respondents.

Judgment in an interlocutory application for the setting-aside of certain subpoenas duces tecum. The court refused the application in [128] of the judgment. An application for leave to appeal against the judgment was dismissed by the Supreme Court of Appeal on 12 November 2019.

Judgment

De Vos AJ:

Introduction

[1] In this application the applicants seek an order cancelling and setting aside subpoenas duces tecum that were issued by the registrar of this court on 2 October 2018 under case No 9157/2017 (the main application). The main application has been enrolled for hearing on 11 June 2019, and the subpoenas are directed to Mr Imtiaaz Hashim, Mr Jason Glass, Ms Jillian Mary Coetzee and Mr Timothy Michael West.

[2] Mr Hashim is a chartered accountant at Grant Thornton, Cape Town. Grant Thornton are the auditors of Nordic Light Properties (Pty) Ltd, the second applicant (Nordic). In terms of his subpoena, Mr Hashim has been directed to produce the following documents:

'1.

All source documents and working documents used for the purpose of preparing the annual financial statements of Nordic Light Properties (Pty) Ltd for the period 31 October 2015 to date;

2.

All correspondence between you and any director of Nordic Light Properties (Pty) Ltd, including Timothy West and Kurt Ola Staffan Antonsson, for the period 31 October 2015 to date;

3.

Copies of all valuations of immovable properties relied on for the purpose of inclusion in annual financial statements of Nordic Light Properties (Pty) Ltd for the period 31 October 2015 to date.'

[3] Mr Glass is also a chartered accountant at Grant Thornton, Cape Town, and his subpoena requires that he should produce the same documents as those listed in the subpoena of Mr Hashim.

[4] Ms Coetzee is a registered professional valuer with the South African Council for Property Valuers Profession, and she is an intern estate agent at Swindon Property Group, Cape Town. She is one of the valuers who valued Nordic's property portfolio for the purpose of the preparation of Nordic's consolidated annual financial statements for the years ending 29 February 2016 and 28 February 2017. In terms of her subpoena, she has been directed to produce the following documents:

2020 (3) SA p116

De Vos AJ

'1.

All source documents and working documents used in compiling a valuation of each of the properties held in the portfolio of Nordic Light Properties (Pty) Ltd for the period 31 October 2015 to date;

2.

All correspondence between you and any director at Nordic Light Properties (Pty) Ltd including Timothy West and Kurt Ola Staffan Antonsson, for the period 31 October 2015 to date;

3.

Copies of all valuations of immovable properties provided to any director of Nordic Light Properties (Pty) Ltd for the purposes of inclusion in annual financial statements of Nordic Light Properties (Pty) Ltd for the period 31 October 2015 to date.'

[5] Mr West is a chartered accountant who resides in Cape Town. He was employed by Nordic as its group financial manager from October 2011 to September 2017. Although a subpoena has been issued for him, it has not yet been served. The applicants have asked the respondents for a copy thereof, but...

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2 practice notes
  • Law of Evidence
    • South Africa
    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...person as a witnes s or to produce any book, paper or document in any proceedings, and it appea rs that—108 Para 111.109 Para 130.110 2020 (3) SA 113 (WCC).111 10 of 2013.© Juta and Company (Pty) YEARBOOK OF SOUTH AFRICAN LAW964https://doi.org/10.47348/YSAL/v1/i1a23(a) he or s he is unable ......
  • Civil Procedure
    • South Africa
    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...Uniform Rules of Court (and, it is submitted, in rule 14 of the magistrates’ courts r ules) is 119 10 of 2013.120 Antonsson v Jackson 2020 (3) SA 113 (WCC) paras 60–61.121 He & She Investments (Pty) Ltd v Brand NO 2019 (5) SA 492 (WCC) paras 6, 10 and 15.122 NPGS Protection & Security Servi......
2 books & journal articles
  • Law of Evidence
    • South Africa
    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...person as a witnes s or to produce any book, paper or document in any proceedings, and it appea rs that—108 Para 111.109 Para 130.110 2020 (3) SA 113 (WCC).111 10 of 2013.© Juta and Company (Pty) YEARBOOK OF SOUTH AFRICAN LAW964https://doi.org/10.47348/YSAL/v1/i1a23(a) he or s he is unable ......
  • Civil Procedure
    • South Africa
    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...Uniform Rules of Court (and, it is submitted, in rule 14 of the magistrates’ courts r ules) is 119 10 of 2013.120 Antonsson v Jackson 2020 (3) SA 113 (WCC) paras 60–61.121 He & She Investments (Pty) Ltd v Brand NO 2019 (5) SA 492 (WCC) paras 6, 10 and 15.122 NPGS Protection & Security Servi......

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