Laskarides and Another v German Tyre Centre (Pty) Ltd (In Liquidation) and Others NNO

• Jurisdiction: South Africa
• Judge: Bhikha AJ
• Judgment Date: 27 February 2009
• Citation: 2010 (1) SA 390 (W)
• Docket Number: 2008/22240
• Hearing Date: 27 February 2009
• Counsel: J Suttner SC (with O Mooki) for the applicants. HB Marais for the respondents.
• Court: Witwatersrand Local Division

Bhikha AJ: G

[1] In this matter the applicants seek, in terms of rule 53 of the Uniform Rules of Court (Uniform Rules), an order to review and correct or set aside the decision of the master of the High Court, Johannesburg (the master), who issued a subpoena duces tecum. The subpoena was authorised H and issued in terms of ss 414, 415 and 416 of the Companies Act 61 of 1973, as amended (the Companies Act). It calls upon Mr Laskarides, the first applicant, who is the managing director of the second applicant, to attend an interrogation at an adjourned second meeting of the creditors of the first respondent (who had been liquidated and whose enquiry was being held), and produce the documents I specified in the subpoena.

[2] This application is based on s 151 of the Insolvency Act 24 of 1936, as amended (the Insolvency Act), which allows for the review of a decision, ruling or order of the master, or an officer presiding at a J meeting of creditors.

Bhikha AJ

[3] The grounds relied on for the relief sought in the application are: A

(a)

The master had no valid reason for issuing the subpoena.

(b)

The second and third respondents did not establish any lawful basis upon which the master could have issued the subpoena.

(c)

The master did not apply his mind to the subpoena at all on the question of documents to be produced by the first applicant, B including -

(i)

the relevance of the documents as specified in the subpoena; and

(ii)

the issue of the costs occasioned in copying the documents requested to be produced.

[4] It is common cause that the master issued the subpoena at the C request of one of the joint liquidators; that it was accompanied by the requisite witness fee payable; that it was duly served upon the first applicant; that when attempts were made to query the basis for the issue of the subpoena because the first respondent is a stranger to the first applicant, both the first applicant's attorney and candidate attorney were D fobbed off, and the master's file was unavailable for inspection at the master's office nor at the meeting of the creditors.

[5] It was argued for the applicants that Mr Laskarides was subpoenaed to attend a public and not a private interrogation, and therefore was entitled to know the reasons in advance for the issue of the subpoena. He E was a stranger to the first respondent, was not a director nor an officer of the first respondent, and, considering the extent of the documents and information sought, he was fully entitled to consider and prepare the basis (eg privilege or privacy concerns) for refusing to make available some or all of the documents sought. In this the applicant attacks the validity of the subpoena and its issue, on the authority of Berman J in F Foot v The Master (an unreported CPD judgment delivered on 23 July 1993 at 8 - 9) who reasons:

'Now to oblige a person, not an officer or director of a company in the course of being wound-up, to appear at a public enquiry held to enquire into the business and affairs of that company is a serious matter, not one G lightly resorted to. It is an obligation, the performance of which is demanded under threat of imprisonment if not carried out it is an invasion of an individual's privacy which is countenanced only under specific conditions and specific circumstances. It requires a person to bare his soul in public, and a person who is authorised to require the attendance of such a person for the purposes of interrogation must H of necessity invoke this authority and exercise this power circumspectly, after due and proper consideration as to the need for such interrogation, the aim, ambit and purpose thereof and to ensure that the person concerned is not called for the examination on matters extraneous to the enquiry. That person, in this case the master, in considering whether to require the attendance of a particular person at an enquiry I in terms of s 415 of the Act, must apply his mind to what may lawfully and relevantly be required of a proposed interrogee by way of oral evidence and delivery of books and records and other documentation. He (the master) is not the tool or agent of the liquidator, obliged to carry out the latter's instructions; the master may take advice and may consult the liquidator, but calling for the attendance of a person at an J

Bhikha AJ

A enquiry under s 415 of the Act, he is his own man, performing a duty and exercising a right imposed and granted him by statute and he is required to bring an independent mind on the need for an enquiry and for an interrogation to be conducted thereat and as to the manner in which this is to be carried out.'

[6] The master, as the seventh respondent, furnished the court with a B report in terms of rule 6(1), in which he:

[6.1]

Explains that he, having considered the motivation for the request to issue the subpoena, concluded that 'facts before master that Mr Laskarides may be able to furnish information C required to protect the interests of creditors (concursus creditorium) in this matter by giving information that was material to be the determination of the affairs of GTC'.

[6.2]

Refers to the empowering provisions contained in s 414(2) of the Companies Act 61 of 1973.

D [7] It is also common cause that the only motivation for the issue of the subpoena is a letter from the second respondent, Mr Venter, who is one of the liquidators. The letter reads as follows:

'1.

We enclose subpoena for issue to Mr John Laskarides, a Director of Bandag Incorporated of SA (Pty) Ltd (Bandag) to which witness E fee and reasonable travelling expenses is attached.

2.

The HE & ME Family Trust (the creditor) is a proved creditor of the insolvent.

3.

The creditor has instituted an action against Bandag out of the High Court of South Africa (Witwatersrand Local Division) under case No 12034/2008 in which is claimed payment of the sum of F R2 169 001 plus interest of 15,5% per annum.

4.

The creditor has executed a...