About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 153
|
|
Parsons and Another v Viljoen (50122/2008) [2011] ZAGPPHC 153 (13 May 2011)
UNREPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA, PRETORIA)
CASE
NO: 50122/2008
DATE:13/05/2011
NEVILLE
PARSONS
..................................................................................................
1
st
Plaintiff
MARTIN
GOUWS
......................................................................................................
2
nd
Plaintiff
And
DEON
VILJOEN
.........................................................................................................
Defendant
JUDGMENT
MATOJANE
J
[1]
The respondent caused a subpoena (the "impugned subpoena")
to be issued in the main proceedings requiring the applicant
("David
Chiat") to produce certain documents which were said to be
relevant in the said proceedings (the "main proceedings")
then pending between the respondent as defendant and certain other
parties, as plaintiffs. The plaintiff withdrew the action on
the
morning of the trial and each party agreed to pay its own costs.
[2]
Chait was not personally cited as a defendant in the main
proceedings, he is a stranger to the main proceedings. He, as
applicant
in the present proceedings seeks an order setting aside the
impugned subpoena with costs.
[3]
It was contended on behalf of Chait that the subpoena issued against
him should be set aside on the ground that it does not
comply with
the rules of court in that firstly, it does not state what volume of
documents is required and secondly there is no
tender for costs for
the preparation, production, copying and compilation of the documents
subpoenaed duces tecum. It was argued
that as the subpoena required
Chait to bring to court documents not properly defined, he was well
within his rights to object to
the subpoena as being vague and too
wide.
[4]
It is necessary to set out briefly the history which led to the
present proceedings. The subpoena was properly served on Chait
on 5
April 2011 informing him that the matter was on the roll on 15 April
2011. A sum of R700 was paid to him as witness fees.
Annexure A to
the subpoena requires Chait to bring:
"Alle
korrespondensie, aansoeke of dokumentasie wat betrekking het op
sodanige korrespondensie of aansoeke vir die agentskap
("franchise")
en of handelaarskap ("dealership") wat betrekking het op
die perseel wat bekend staan as Zenex
Oiivedale".
[5]
No affidavits to set aside the impugned subpoena were filed, it being
agreed by the parties that the application is based on
the contents
of the subpoena itself.
[6]
Rule 38(1) of the Uniform Rules expressly requires that a subpoena
duces tecum "specify" the document or thing which
the
witness concerned is required to produce. Rule 38(l)(b) provides that
any witness who has been required to produce a document
at the trial
shall hand it over to the registrar as soon as possible. It is clear
that the primary objective of rule 38 is to secure
the production of
documents from persons who are not necessarily parties in the main
proceedings. The respondent was accordingly
acting within his rights
to issue and serve the impugned subpoena. In the absence of the
evidence by the applicant of the volume
of the documents covered by
the subpoena, I disagree with applicant's contention that the
impugned subpoena should be set aside
on the basis that there is no
tender for costs for the preparation, production and copying of the
documents subpoenaed. The Rule
requires the documents to be handed
over to the registrar and it is for the person who requires the
documents to make copies not
the applicant.
[7]
The subpoena was served on the applicant 10 days before the date of
the hearing. It is clear from the annexure to the subpoena
that the
documents he was required to produce were not sufficiently described.
In my view, in the absence of an explanation by
applicant why he
decided to launch these proceedings, lack of specifity in this case
is not a valid ground for setting aside the
impugned subpoena. The
appellant had sufficient opportunity to enquire from the respondent
what documents he was required to bring
to court. Appellant was a
material witness and was paid R700.00 in advance to come to court, he
could not be found to be in contempt
for not bringing to court a
document which is not specified, if that document is called for. In
my view, it cannot be said that
the subpoena constituted a form of
harassment or that it was oppressive. Save for not knowing what
documents to bring to court
he did not suffer any material prejudice.
[8]
The question which arises is whether the issue and service of the
impugned subpoena constituted a mala fide exercise by the
respondent
of its rights in terms of rule 38(1). See Beinash v Wixley
[1997] ZASCA 32
;
1997 (3)
SA 721
at 736H/I-I/J & 737E-E/F. In my view, there is no
suggestion that the respondent abused the process of court in seeking
to
secure the production of documentary evidence it thought relevant
to its case in the possession and control of Chait.
[9]
I am therefore of the view that Chait was not entitled, in the
circumstances of the present case , to ask the court to set aside
the
impugned subpoena on the ground that the documents he was required to
bring were not sufficiently described.
[10]
In my view, there is no justification for a cost order as the
respondent did not incur any costs in opposing the application
as the
matter was set down for hearing on that day.
In the result the
following order is made:
1. The application is
dismissed.
2. Each party to pay its
own costs.
MATOJANE,
J