Mantis Investment Holdings (Pty) Ltd v Eastern Cape Development Corporation and Others

• Jurisdiction: South Africa
• Judge: Ponnan JA, Swain JA, Dambuza JA, Davis AJA and Mothle AJA
• Judgment Date: 01 June 2018
• Citation: 2018 (4) SA 439 (SCA)
• Docket Number: 857/2017 [2018] ZASCA 95
• Hearing Date: 01 June 2018
• Counsel: A Beyleveld SC for the appellant RG Buchanan SC for the first respondent.
• Court: Supreme Court of Appeal

Ponnan JA (Swain JA, Dambuza JA, Davis AJA and Mothle AJA E concurring):

[1] This appeal has its genesis in a suretyship issued by a company previously known as Mantis Group Holdings (Pty) Ltd, now known as No 1 Watt Street (Pty) Ltd (the company in liquidation), in favour of the first respondent, the Eastern Cape Development Corporation, in respect F of moneys loaned and advanced to the Bushman Sands Developments (Pty) Ltd (Bushman Sands).

[2] Bushman Sands was unable to repay the amount due to the first respondent and as a result it instituted action in the Eastern Cape Local Division of the High Court, Port Elizabeth (the High Court), against the G former and the company in liquidation, claiming, respectively, repayment of the loan and enforcement of the suretyship undertaking in the amount of R19 357 645. Several defences were raised by the company in liquidation to the claim of the first respondent, but shortly before the commencement of the trial the appellant, Mantis Investment Holdings (Pty) Ltd, as the sole shareholder of the company in liquidation, H successfully applied for its liquidation.

[3] The third respondent, W de Jager NO, and the fourth respondent, CA Schroeder NO, were appointed the joint liquidators of the company in liquidation. At the second meeting of creditors held at the offices of I the second respondent, the Master of the High Court, Port Elizabeth (the Master), on 19 July 2016 the claims of the appellant in the sum of R2 491 455, and the first respondent in the sum of R19 357 645, were admitted. Thereafter, on 4 August 2016, the appellant's attorney wrote to the liquidators setting out a list of persons and documents they desired to have subpoenaed. That request was forwarded by one of the joint J liquidators to the Master, who on 12 August 2016, and in compliance

Ponnan JA (Swain JA, Dambuza JA, Davis AJA and Mothle AJA concurring)

with the request, summoned a number of employees (past and present) A of the first respondent to appear before him on 24 August 2016.

[4] Aggrieved by this turn of events, on 14 September 2016 the first respondent launched an application in the High Court seeking to review and set aside the subpoenas issued by the Master. The application succeeded before Mbenenge J, who subsequently granted leave to the B appellant to appeal to this court.

[5] In arriving at his conclusion, Mbenenge J identified the issue for determination thus:

'[14] At the...