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
>>
2022
>>
[2022] ZAGPPHC 772
|
|
Steyn v Meyer (59537/2021) [2022] ZAGPPHC 772 (13 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 59537/2021
REPORTABLE:
NO.
OF
INTEREST TO OTHER JUDGES: NO.
REVISED.
2022-10-13
In
the matter between:
DOMINIC
JOHN STEYN
Identity
number: [....]
Applicant
and
LOURIKA
MEYER
Identity
number:
[....] Respondent
JUDGMENT
POTTERILL
J
[1]
In this matter for ease of reference I will refer to the parties by
name. Ms.
Meyer issued and served a subpoena
duces tecum
on
Investec Bank Ltd, the bank who Mr Steyn applied to for a mortgage
bond. The subpoena
duces tucem
was issued by Ms Meyer
purportedly in terms of Rule 38 of the Uniform Rules of Court.
[2]
Ms Meyer and Mr Steyn are unmarried, but have a daughter. Ms
Meyer launched
an application [the main application] to declare a
motor vehicle a gift from Mr Steyn to her and to order Mr Steyn to
pay the monthly
instalment and insurance and to register the vehicle
in the applicant’s name upon the last instalment being paid.
Ms
Meyer also seeks that an alleged agreement to pay maintenance in
the amount of R4 495.00 be enforced including ancillary relief
thereto. Furthermore interim relief is sought pertaining to the
primary residence and contact rights of the minor child pending
an
investigation by the Family Advocate.
[3]
I had expressed my concern to counsel for Ms Meyer that the nature of
the application
leans itself to a
bona fide
dispute of fact
which could render the application still-born. Counsel however
was of the view that in the main application
there would be no
dispute of fact and the matter could proceed on mere affidavits.
[4]
In the answering affidavit to the main application Mr Steyn set out
that he was experiencing
financial difficulties and that he cannot
afford to pay the amount maintenance claimed. This averment
caused Ms Meyer to
resort to the issuing and service of the subpoena,
because Mr Steyn had bought a property and a vehicle, yet was
pleading poverty.
[5]
Mr Steyn filed the replying affidavit to the Rule 30 application late
and sought condonation
for the late filing thereof. On behalf
of Ms Meyer, in order to finalise the matter, no formal objection to
the condonation
application was placed on record. Accordingly
condonation for the late filing is granted.
[6]
The conditional counter-application of Ms Meyer was conceded to be
irregular in Rule
30 proceedings and it was abandoned.
The Rule 30
application
[7]
Mr Steyn is seeking that the subpoena
duces tecum
dated 23
March 2022 be set aside as an irregular step in terms of Rule 30.
[8]
Much of the opposition to this application is only relevant to the
main application.
The crisp issue is whether in an application
a party can without the court’s consent issue such subpoena.
Rule 38(1)(a)(iii)
and (c) of the Uniform Court Rules makes provision
for various procedures to procure evidence for a trial.
Utilising Rule
38 in these circumstances is irregular. Firstly,
because it relates to securing the attendance of a witness for
trial.
If, as argued, there will be no trial to resolve factual
disputes then no witness can testify. The procedure cannot be
utilised
to secure documentation and not a witness to tender the
document into evidence. A subpoena
duces tecum’s
whole
purpose is to facilitate the attendance of such witness to produce a
document. In this application procedure chosen
by the legal
representation of Ms Myer no witnesses can testify. By no means
can this rule be utilised for an application.
[9]
Ms Meyer chose to proceed by means of application. Only the
court can in application
proceedings order and only when there is a
dispute of fact, whether the application will be dismissed, or
referred to oral evidence,
or trial and whether witnesses must be
subpoenaed.
[10]
Ms Meyer is not without a remedy. Rule 35(13) caters for
discovery of documents in application
proceedings.
[11]
I see no reason why the costs must not follow the result, but I do
not find the jurisdictional
requirements for a punitive costs order.
Accordingly, I make the following order:
11.1
The subpoena
duces tecum
dated 23 March 2022 is set aside.
11.2
The respondent is to carry the costs on a party and party scale.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 59537/2021
HEARD
ON: 11
October 2022
FOR
THE APPLICANT: ADV.
G. KYRIAZIS
INSTRUCTED
BY: Cowan-Harper
Madikizela Attorneys
FOR
THE RESPONDENT: ADV.
L. VAN DER WESTHUIZEN
INSTRUCTED
BY: Barnard
Incorporated Attorneys
DATE
OF JUDGMENT: 13
October 2022