Meyers v Marcus and Another

• Jurisdiction: South Africa
• Judge: Griesel J
• Judgment Date: 16 April 2004
• Docket Number: 1574/04
• Hearing Date: 08 April 2004
• Counsel: R Buchanan SC for the applicant. B K Pincus SC (with him D Goldberg) for the first respondent. L Weinkove SC for the second respondent.
• Court: Cape Provincial Division

Griesel J:

Introduction

[1] The applicant, Mr Jack Meyers (Meyers) applies for an order E setting aside a subpoena duces tecum that has been served on him at the behest of the first respondent in a pending divorce action under case No 4923/03 (the main action) between the latter and his wife, the second respondent. For convenience I refer to the first and second respondents by their designation in the main action, viz as 'defendant' and 'plaintiff', respectively.

[2] The trial of the divorce action is set down to commence on F 3 May 2004. On 13 January 2004 Meyers was served with a subpoena requiring him, on the above-mentioned trial date, 'to appear in person before this Court . . . and thereafter to remain in attendance until excused by the said Court, in order to testify on behalf of the above-named defendant in regard to all matters within your knowledge relating to an action now pending in the said Court G . . .'. He is further required 'as soon as possible to produce and deliver to the said Registrar of the Court in terms of Rule 38(1)(b) the documents specified in the schedule of documents annexed hereto marked ''A'', to enable the defendant and/or the defendant's attorneys to inspect such documents . . . and make copies or transcriptions thereof, after which the witness H shall be entitled to the return thereof'. I shall refer in more detail to the nature of the documents specified in annexure A later in this judgment.

[3] Meyers now applies to this court to have the subpoena set aside on a variety of grounds, inter alia that the subpoenaed documents are irrelevant to the issues in the main action I and that the issue of the subpoena amounts to an abuse of the process of the court. In order to appreciate the issues, the following background is relevant.

Factual background

[4] The plaintiff and the defendant were married to each other out of J

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community of property and by antenuptial contract in 1978. A Three children were born of the marriage, two of whom are still minors. It is common cause that the marriage relationship between the parties has broken down irretrievably. Although the exact reasons for such breakdown are not relevant for present purposes, the divorce litigation between the parties has become very acrimonious. B

[5] At issue between the parties in the divorce action is the plaintiff's claim in terms of s 7(2) of the Divorce Act 70 of 1979 (the Act) for personal maintenance at a rate of R35 000 per month, as well as her claim in terms of s 7(3) of the Act for a redistribution of assets accumulated by the defendant during the course of the marriage. C

[6] Meyers is the father of the plaintiff and hence the father-in-law of the defendant. He is not a party to the main action. By all accounts, he is 'a man of extreme wealth', whose assets, held through various companies and trusts locally and offshore, runs 'into hundreds of millions of Rands' (according to the defendant). Although Meyers says that the defendant D 'substantially overstates the extent of my wealth', he concedes that he has 'a very substantial estate which consists of assets in Monaco, South Africa and elsewhere'. He has been permanently resident in the Principality of Monaco since 1986, but remains a South African citizen.

[7] The trial of the divorce action was originally set down for E hearing on 8 December 2003. A month prior to the trial date, a subpoena duces tecum (the first subpoena) was issued on behalf of the defendant and served on Meyers' accountant in Port Elizabeth, Mr Clem Morris (Morris). In terms of the subpoena, Morris was required to produce (inter alia) documents relating to Meyers' financial position and assets, including financial statements F for the past three financial years relating to Meyers' 'Primary Trust'; eight different companies and trusts in which the latter has an interest; as well as a final catch-all category, relating to 'any companies, close corporations, trusts or other entities, be they local or offshore, in which [Meyers] holds an interest, either directly or indirectly'. G

[8] In a letter dated 27 November 2003 addressed to Morris, the attorney acting on behalf of the defendant, Mr Wille (Wille) explained the relevance of the required documentation as follows:

'(T)he wealth of the Meyers family in general is incredibly relevant to the trial, as this goes to the prospective or existing H means of the plaintiff herein, namely Janice Marcus.

In this regard we refer you to the Divorce Act which specifically states (as explained previously) that the existing and prospective means of a party to a divorce action is incredibly relevant when the Court has to decide upon issues which have been set out in the particulars of claim, as in this particular matter.

We place on record that unfortunately you cannot decide which I documents are relevant and which documents are not relevant, and in terms of the Divorce Act, the documents which have been stipulated and listed in the annexure to our subpoena are all relevant and, under the circumstances, we would ask you to telefax all the documents through to us immediately.'

[9] This elicited a response from the attorney acting on behalf of Meyers and of Morris, Mr Spilkin (Spilkin). Spilkin claimed that the subpoena served upon Morris was an abuse of the process of the court and that it J

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also related to irrelevant matter. He demanded that the A subpoena be withdrawn, failing which an application would be brought at the trial to set aside the subpoena. To the extent that it may be relevant to the divorce, Spilkin stated that he had been instructed by Meyers to place on record 'that he is a wealthy man and controls trusts and companies that run into millions of rands'. It was also stated that the only documents referred to in the schedule to the subpoena which could conceivably have been relevant were documents B relating to two trusts in respect whereof the plaintiff is a discretionary beneficiary. In this regard it was pointed out that detailed information had already been provided to the defendant's legal representatives concerning the plaintiff's interests in such trusts. Notwithstanding his objections to the subpoena, a copy of one C of the documents required was annexed to the letter, namely the computer printout of the plaintiff's loan account in Meyers' primary trust.

[10] On 1 December 2003 Wille replied to Spilkin's letter, reiterating the purpose of the subpoena, as stated earlier. As an alternative, however, Wille suggested that if certain 'particulars' were supplied by Meyers, it might prove unnecessary to D persist in the subpoena. These 'particulars' related to that part of the schedule to the subpoena which concerns the entities in South Africa in which Meyers holds an interest.

[11] Spilkin responded by way of a telefax transmission the next day, pointing out that full details had already been supplied of all entities in respect of which the E plaintiff had an interest whether direct or contingent and that no further particularity regarding Meyers' assets was relevant.

[12] In the interim a consultation was arranged with the defendant's counsel and Morris, also to be attended by attorneys and counsel who represented Meyers and Morris. The defendant's legal representatives had undertaken that, although F Morris would attend at the trial on 8 December 2003, he would not be required to give any evidence concerning Meyers' affairs or estate, nor would he be required to make available any further documentation relating to Meyers' estate.

[13] A telefax transmission sent on 5 December G 2003 by Spilkin to Wille shows that the only outstanding issue related to the form of an affidavit which Morris was requested to prepare and sign. The affidavit related entirely to the affairs of the defendant and was duly transmitted to the defendant's attorneys.

[14] As noted above, the trial did not proceed on the H appointed date and, by agreement between the parties, it was postponed to 3 May 2004. It appears that one of the reasons for the postponement was the fact that certain documents pertaining to the defendant's offshore assets were made available by Meyers to the plaintiff's legal team on the morning of the trial.

[15] Just over a month later, the present subpoena I was served on Meyers. The documents listed in the schedule are virtually identical to those listed in the earlier subpoena served on Morris, save for a new category relating to 'any and all documents reflecting the assets and liabilities of the defendant, be they local or offshore'.

[16] This elicited a response from Spilkin, recording the previous developments, J

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as outlined...