Meyers v Marcus and Another (1574/04) [2004] ZAWCHC 15; [2004] 2 All SA 438 (C); 2004 (5) SA 315 (C) (16 April 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2004
>>
[2004] ZAWCHC 15
|

|

Meyers v Marcus and Another (1574/04) [2004] ZAWCHC 15; [2004] 2 All SA 438 (C); 2004 (5) SA 315 (C) (16 April 2004)

reportable
in the high court of South Africa
(cape of good hope provincial division)
Case No 1574/04
In the matter between:
Jack meyers Applicant
and
jonathan
dale marcus First Respondent
Janice Marcus
(born Meyers) Second Respondent
judgment: delivered 16 april 2004
Griesel J:
Introduction
The
applicant, Mr Jack Meyers
(Meyers)
applies for an order 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.
The
trial of the divorce action is set down to commence on 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…’.
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 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.
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 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
The
plaintiff and the defendant were married to each other out of
community of property and by antenuptial contract in 1978. 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.
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.
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 ‘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.
The
trial of the divorce action was originally set down for 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 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’.
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
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
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.’
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 also related to
irrelevant matter. He demanded
that the 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
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 of the documents required was annexed to the
letter namely the computer printout of the plaintiff’s loan
account in Meyers’ primary trust.
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 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.
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
plaintiff
had an interest whether direct
or contingent and that no further particularity regarding Meyers’
assets was relevant.
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 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.
A
telefax transmission sent on 5 December 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.
As
noted above, the trial did not proceed on the 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.
Just
over a month later, the present subpoena 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’.
This
elicited a response from Spilkin, recording the previous
developments, as outlined above. He also reiterated that ‘all
documentation
and information which could conceivably be relevant to
the divorce action between Mr and Mrs Marcus has been made available
by
Mr Clem Morris and you have copies thereof’. He asserted,
furthermore, that the additional documentation sought in the
subpoena
served upon Meyers was ‘entirely irrelevant to any
dispute which may arise from the pleadings in the pending divorce
action’.
As such, Spilkin continued, ‘the subpoena is an abuse
and must be withdrawn forthwith’, failing which an application
would
be brought, on a semi-urgent basis, to have the subpoena set
aside.
When
no agreement could be reached, the present application was launched
and is being vigorously opposed on behalf of the defendant.
The
plaintiff adopts a more passive stance, although she too was
represented at the hearing before me by senior and junior counsel.
In Limine
Two
preliminary issues must be dealt with briefly. The first relates to
a point raised – albeit somewhat tentatively – on behalf
of the
defendant. In his answering affidavit the defendant states that
‘only the trial court seized with the knowledge of the
disputes
between the [plaintiff] and [defendant] can make a just decision
regarding this application’. During the hearing before
me, counsel
for the defendant persisted with this argument.
A
similar objection was rejected by Mahomed CJ in
Beinash v Wixley
,
1
where it was held as follows:
‘
I am unable to appreciate why a Court cannot at any stage set
aside a subpoena if it is satisfied, even before the commencement of
the trial, that the issue of the subpoena indeed constituted an
abuse of the process of the Court. Were it otherwise the witness
who
is subpoenaed would have to continue to endure the oppres­sive
consequences of the demands made in the subpoena under the
threat of
criminal sanctions until he or she was relieved of that obligation
by the trial Court in the future, however distant
or uncertain it
may be. Moreover,
Rule 38(1)
now obliges him to do so “as soon as
possible”.
…
I am therefore of the view that Wixley was entitled, in the
circumstances of the present case, to ask the Court to set aside the
impugned subpoena on the ground that it constituted an abuse of the
process of the Court, notwithstanding the fact that that application
was made before the commencement of the main proceedings in which
the documents demanded by the subpoena were allegedly required
by
Beinash.’
In my
view, exactly the same reasoning applies to the case before me. In
the circumstances, I am satisfied that there is no merit
in this
point.
The
second preliminary point relates to Meyers’ objection to the
jurisdiction of this court, based on the assertion that he is
neither domiciled nor permanently resident in South Africa. Apart
from the factual dispute on the papers as to his precise residential
status and domicile, his counsel was unable to refer me to any
authority requiring either domicile or permanent residence as a
prerequisite for the exercise of the court’s jurisdiction over a
witness, nor was I able to find any such authority.
Prima facie,
the objection appears to fly in the face of the clear and
un­ambiguous provisions of sec 19(1)
(a)
of the
Supreme Court Act 59 of 1959, which extends the court’s
jurisdiction in un­qualified terms to ‘all persons residing
or
being in … its area of juris­diction’. Be that as it may, in
the view I take of the other points raised on Meyers’
behalf, it
is not necessary to come to any firm conclusion in relation to the
objection to the court’s jurisdiction and I refrain
from doing so.
Legal Position
Rule 38(1) of the
Uniform Rules provides as follows:
‘
(a)
Any party, desiring the attendance of any person to give evidence
at a trial, may as of right, without any prior proceeding
whatsoever, sue out from the office of the registrar one or more
subpoenas for that purpose…
If any witness has in his possession or control any deed,
instrument, writing or thing which the party requiring his
attendance
desires to be produced in evidence, the subpoena shall
specify such document or thing and require him to produce it to the
court
at the trial.
(b) Any witness who has been required to produce any deed,
document, writing or tape recording at the trial shall hand it over

to the registrar as soon as possible, unless the witness claims that
the deed, document, writing or tape recording is privileged.
Thereafter the parties may inspect such deed, document, writing or
tape recording and make copies or transcriptions thereof, after
which the witness is entitled to its return.’
Our
courts have repeatedly emphasised the importance of the general duty
resting on all mem­bers of society to give whatever
evidence
they are capable of giving, coupled with the concomitant right of
litigants to command such assistance.
2
Nonetheless, wide as the right to subpoena a witness may be, it is
not un­trammelled. Should the court be satisfied in any
particular case that the issue of a subpoena indeed constitutes an
abuse it is quite entitled to set it aside. In
Beinash v Wixley,
3
Mahomed CJ quoted with approval from the judgment in
Hudson v
Hudson and Another,
4
where the following was said:
‘
When … the Court finds an attempt made to use for ulterior
purposes machinery devised for the better administration of justice,
it is the duty of the Court to prevent such abuse.’
The
learned Chief Justice thereupon proceeded as follows:
5
‘
What does constitute an abuse of the process of the Court is a
matter which needs to be determined by the circumstances of each

case. There can be no all-encompassing definition of the concept of
“abuse of process”. It can be said in general terms, however,
that an abuse of process takes place where the procedures permitted
by the Rules of the Court to facilitate the pursuit of the
truth are
used for a purpose extraneous to that objective. … A subpoena
duces tecum
must have a legitimate purpose. …
Ordinarily, a litigant is of course entitled to obtain the
production of any document relevant to his or her case in the
pursuit
of the truth, unless the disclosure of the document is
protected by law. The process of a subpoena is designed precisely to
protect
that right. The ends of justice would be prejudiced if that
right was impeded. For this reason the Court must be cautious in
exercising
its power to set aside a subpoena on the grounds that it
constitutes an abuse of process. It is a power which will be
exercised
in rare cases, but once it is clear that the subpoena in
issue in any particular matter constitutes an abuse of the process,
the
Court will not hesitate to say so and to protect both the Court
and the parties affected thereby from such abuse.’
On behalf of the
defendant, strong reliance was placed on the
dictum
by
Corbett J in
Sher and others v Sadowitz
6
to the effect that the court can, in the exercise of a general power
to prevent an abuse of its process, set aside a subpoena ‘where
it
is certain as a matter of certainty that the witness who has been
subpoenaed will be totally unable to be of any assistance
to the
Court in the determination of the issues raised at the trial’.
In my respectful
view, this
dictum
is not authority for the proposition that,
where a witness is able to be of
some
assistance to the
court, he or she is invariably also com­pellable as a witness.
As the above extract from the judg­ment
in
Beinash v Wixley
clearly shows, a subpoena may amount to an abuse of the process
of the court notwithstanding the fact that the subpoenaed witness
may be able to give relevant evidence or produce relevant documents.
To put it differently, the issues of relevance and abuse of
the
pro­cess, though possibly inter-related, are separate and
distinct. Thus, a subpoena issued in respect of a witness unable
to
give relevant evidence or to produce relevant documents will
ordinarily amount to an abuse of the process of the court. However,
the converse is not necessarily true: the evidence sought to be
obtained may be relevant and yet amount to an abuse of the process.
This will be so,
inter alia
, where the subpoena is issued for
an improper purpose.
Against
this background, I now turn to consider the issues of rele­vance
and abuse of the process in the present scenario.
Relevance
The
professed purpose of the subpoena under discussion, according to the
defendant, is twofold: firstly, it is proposed ‘to extract
from
him [Meyers] documents and elicit evidence relevant to his financial
position’. Secondly, the defendant claims that Meyers
has in his
possession ‘a number of my private and confidential documents
which he [Meyers] intends to use at some stage of the
trial at the
appropriate selected moment which he refuses to make available to me
via the discovery procedures which I have invoked
against the second
respondent’.
As
far as the first point is concerned, Meyers takes the stance that
his personal financial position is irrelevant to the disputes
between the plaintiff and the defendant. The defendant disagrees,
contending
inter alia
that ‘it is the extent of Meyers’
estate and what the [plaintiff] is due to inherit which is germane
to the trial’.
This is so, according to the defendant,
because in terms of s 7(2) of the Act one of the factors to be
taken into account by
the court in considering personal maintenance
for a plaintiff is ‘the means or pro­spec­tive means’ of
such party.
In
Beira v Beira
7
it was held that the rights under a trust, the assets of which had
not yet vested in the plaintiff, should be classified as a
spes
,
which is not relevant to an inquiry for the purposes of a
redistribution order in terms of s 7(3) of the Act. The inquiry
in terms of s 7(2) of the Act for purposes of a claim for
maintenance is, however, wider: it requires the court to have
regard,
not only to ‘existing means’, but also ‘prospective
means’ of a party. It was argued on behalf of the defendant that a

potential inheritance is included under the latter concept.
In
my view, this argument is misconceived. In the first place, Meyers
has complete freedom of testation. As he puts it in the founding
affidavit herein:
‘
Whilst I have no reason, at present, to disinherit my daughter
and have no intention of doing so, I cannot state categorically that
this will never happen nor am I obliged to make such a categoric
statement.’
It
is pointed out, furthermore, that Meyers is presently 70 years of
age and appears to be in good health. It would seem likely
that he
will live for quite a number of years to come. Any prospect that the
plaintiff might inherit from her father, could thus
lie in the
distant future. In these circumstances, the plaintiff’s prospect
of inheriting from her father is not, in my view,
a relevant factor
to be taken into account at this stage. Counsel was unable to refer
me to any authority for the contrary position.
Should
the plaintiff eventually inherit from her father, the position may
well be different once her inheritance has vested. In
that event,
the defendant will, no doubt, be at liberty to approach the
appropriate court with an application to reduce or terminate
any
maintenance obligation he has towards her.
In
any event, even should the plaintiff’s prospect of inheritance be
a factor which the trial court could legitimately take into
consideration (which Meyers denies), it is completely unnecessary
for the defendant to insist upon full disclosure of
all
Meyers’ financial affairs in order to establish such a
possi­bility. Based on the evidence as a whole, it may be
accepted
that,
should
the plaintiff eventually inherit from
her father, such inheritance may well render her financially
indepen­dent for the rest
of her life, thereby obviating the
need for any contribution towards her main­tenance by the
defendant. Without wishing in
any way to bind the trial court in
this regard, I cannot imagine that such court needs to know more
than this about the extent
of Meyers’ personal wealth in order to
assess the plaintiff’s ‘prospective means’.
The
fact of the matter is that, on the evidence which is common cause,
the issue around personal maintenance for the plaintiff is
of
peripheral import­ance in the total scheme of things. Apart from
anything else, it is a well-recognised principle in matters
of this
nature that the courts ordinarily try to effect a ‘clean break’
between the parties ‘if the circumstances permit’.
8
In the present case it is clear, not only that the financial
position of the parties would permit this course to be followed, but
that it would be the preferable option – especially in view of the
very acrimonious relationship between the parties. It follows,
therefore, that the claim for personal maintenance for the plaintiff
may well fall away in its entirety, depending on the extent
of the
eventual award in terms of s 7(3) of the Act. It is for these
reasons that I disagree with the sentiments, repeatedly
expressed on
behalf of the defendant, that
precise
details of Meyers’
personal financial position is ‘incredibly relevant’ to the
issues at the trial of the main action.
As
for the second ground relied upon by the defendant, it is likewise
misconceived. The defendant appears to suggest that Meyers
is in
possession of some of his (defendant’s) own personal documents. It
is significant that the defendant does not allege that
he requires
such documents for the purpose of preparing for the trial action. He
does not even allege that he himself does not
have copies of those
documents in his possession. His main concern appears to be to
prevent a ‘slow leak’ of such documents
to the plaintiff, as
happened on the previous trial date. As it was graphically put by
his attorney in a recent letter:
‘
Your client must understand that one of the main reasons for
issuing out the subpoena was to assist our client in proving the
prospective
means of Janice Marcus [the plaintiff] and further was
to prevent your client, Mr Jack Meyers [the
applicant
],
from slowly at opportune times selectively delivering documentation
to Janice Marcus on a “piece meal” basis in order to
obtain
postponements of trials and the like (like slow poison).’
I
am unpersuaded that the defendant has made out a case for a
sub­poena in respect of his own documents. Insofar as the
defendant
may have any pro­prietary interest in such documents,
he has certain well-established possessory remedies available to
enforce
those rights; he does not require Meyers to produce such
documents at the trial of the main action under threat of criminal
sanction,
nor does he require Meyers’ personal attend­ance at
the trial for such purpose.
In
any event, the defendant himself is obviously the person best placed
to inform the court about his own financial position, including
his
offshore assets. I find it difficult to understand why the defendant
requires Meyers’ evidence concerning his own (defendant’s)
financial position.
For
these reasons, I conclude that the bulk of the subpoenaed documents
are irrelevant to the disputes in the main action.
Improper motive / Abuse of the process
Even
if some of the subpoenaed documents were found to be relevant (which
it is unnecessary to decide), it is clear from what I
have said
above
9
that the subpoena may none­theless be set aside if the court, in
the exercise of its discretion, was satisfied that it amounts
to an
abuse of the process. Having regard to the background facts as
outlined above, the question for deter­mination is whether
the
issue and attempted enforcement of the impugned subpoena constitute
a
bona fide
exercise by the defendant in terms of the Rules
of Court to pursue and ventilate the truth in the dispute between
the parties to
the main action. It is to a consideration of this
aspect that I now turn.
The
first point to note relates to the issue of the first subpoena. It
will be recalled that the first subpoena, in
virtually identical
terms,
had been issued against Meyers’ accountant, Morris,
prior to the previous trial date. Following negotiations between the
parties,
certain documents relating to two trusts in which the
plaintiff is a discretionary beneficiary were made available to the
defendant’s
attorneys with the consent of Meyers. It was
eventually agreed that Morris need not produce further documents,
nor testify at the
trial.
Just
over a month later, the subpoena presently under consideration was
issued against Meyers
, again requiring
production
of the same documents earlier required from Morris, in addition to a
further category relating to the defendant’s own
documents.
Against
this background, it was argued on behalf of Meyers that the first
subpoena had been withdrawn. This was strenuously denied
on behalf
of the defendant.
In
my view, the defendant finds himself on the horns of a dilemma with
regard to the first subpoena: either he has abandoned or
withdrawn
it, as claimed on behalf of Meyers, thereby conceding that the
documents have either been obtained or are no longer necessary;
or
the subpoena has not been withdrawn, in which event there is no need
whatsoever to issue a fresh subpoena
in virtually identical terms
against Meyers.
On
my assessment of the situation, Spilkin is correct where he
contends:
‘
There can be no doubt whatsoever that the undertaking given by
your client that Mr Morris would not be called to reveal any of Mr
Jack Meyers’ personal affairs, as above, amounts to an unequivocal
acknowledgement that all relevant details per­taining
to your
client’s wife have indeed been furnished by Mr Morris on behalf of
Mr Meyers.’
What
is also highly relevant in the present context, to my mind, is the
personal relationship between the parties. The defendant
himself
concedes that the relationship between himself and Meyers (as well
as between himself and the plaintiff) is at this stage
‘acrimonious’, to put it no higher. He blames Meyers entirely
for this state of affairs, describing Meyers as the single biggest
‘stumb­ling-block’ to a settle­ment of the main action,
as ‘he [Meyers] is controlling the litigation’ and ‘he
wants
to “destroy” me financially’. The defendant accuses Meyers of
causing ‘turmoil amongst my children’. He has threatened
to lay
criminal charges against Meyers with the Scorpions for unspecified
offences, relating (presumably) to exchange control contra­ventions
committed by Meyers in the past. Notwithstanding this background,
the defendant wishes to call Meyers as a witness, ‘even though
he
is hostile to my cause’. In my view, the prospect of Meyers in
these circumstances being called as a witness
for the defendant
indeed promises to provide a spectacle for which ‘tickets
could be sold’, as it was put by Meyers’ counsel.
A
further factor casting doubt over the sincerity of the defendant’s
desire to call Meyers as a witness is his reticence to disclose
the
nature and content of the evidence to be elicited from the latter.
The
defendant
asserts
in this regard:
‘
I am not obliged to furnish “chapter and verse” as to the
questions which will be put to the
applicant
when he testifies.’
All
that the defendant is prepared to reveal in this regard is the
following:
‘
The
applicant
has a good deal of
knowledge concerning my estate and he will be required to testify in
that regard.’
And
elsewhere:
‘
I do not wish to highlight the evidence which will be
extracted from the Applicant at the trial, but in simple terms point
out that
he has a good deal of knowledge of my financial affairs and
is well aware of the fact that the Second Respondent, probably on
his
instructions, is attempting to put up a false scenario before
the Court, particularly in regard to off-shore assets.’
The
defendant’s reluctance to take the court into his confidence as to
the evidence required from Meyers means that he cannot
be heard to
complain if the court declines to come to his assistance to secure
necessary evidence. To the extent that the defendant
does reveal his
intentions regarding Meyers’ evidence, it does not persuade me
that he reasonably requires Meyers as a witness
to
testify
as to his own (defendant’s) financial position or
for any other legitimate purpose.
Moreover,
the decision to call Meyers as a witness for the defence appears to
be an afterthought on the part of the defendant and
his legal team,
formulated after the postponement of the trial during December 2003.
It is apparent from the evidence before me
that Meyers placed
certain documents at the plaintiff’s disposal relating to the
defendant’s undisclosed offshore assets, which
had not been
discovered by the defendant up to that stage. It can be accepted
that these developments caused the defendant some
con­siderable
inconvenience and annoyance. Not only did it result in the
post­ponement of the trial; it also necessitated
a supplementary
application by the defendant to the Revenue authorities for amnesty
in respect of such undeclared assets. It is
not farfetched to see in
these developments an important ulterior motive for the issue of the
present subpoena.
Insofar
as the defendant might fear that Meyers will (again) ‘feed’
further financial documents relating to the defendant to
the
plaintiff, the short answer is that the plaintiff will be unable to
use any such documents at the trial unless there has been
proper
discovery thereof.
The
defendant has also referred to certain passages in the judgment of
Van Zijl J in
S v Wessels,
10
to the effect that there is a general duty resting upon every member
of the public to give what evidence he is capable of giving
and â€“
‘
If the courts are prevented from arriving at the truth there
can be no justice. It is for this reason that the court will allow

no one to stand between it and the truth’.
In my
respectful view, those sentiments cannot not assist the defendant in
the present scenario. The search for the truth – vital
as that
quest undoubtedly is – must, in the context of litigation and in
the interests of justice, be confined to evidence that
is relevant to
the issues in any particular case. In the present case, the trial
court does not require evidence as to the full extent
of Meyers’
wealth in order to come to a just decision on the disputes between
the plaintiff and the defendant; on the contrary,
a full
investigation of those matters is certain not only to prolong the
pro­ceedings considerably, but also to obfuscate the
issues. As
far as the plaintiff’s own financial position is con­cerned,
sufficient information is available from other sources.
It goes
without saying that the defendant also has all the inform­ation
he requires in relation to his own financial position.
This is not a
case, therefore, where the truth would be withheld from the court
unless Meyers were compelled to produce the subpoenaed
documents and
to give
viva voce
evidence.
In
the final analysis, Meyers has a constitutionally protected right to
privacy. As he is not a party to the pending litigation,
the
impugned subpoena constitutes a gross invasion of such right to
privacy. Before such an invasion will be sanctioned, the party
seeking to infringe such right bears an onus of persuading the court
that it is justified. In all the circum­stances, I find
that the
defendant has failed to discharge that onus.
Conclusion
Having
regard to the overall picture, I am of the firm view that the
service of the subpoena upon Meyers in the circumstances of
this
case was both misguided and high-handed. The irresistible inference
is that it was designed to operate
in terrorem,
so as to
embarrass, intimidate and incon­venience Meyers. Or, as it was
put by Mahomed CJ:
11
‘
The impugned subpoena appears to me to be intended as a
missile to oppress and harass [the witness].’
In
all the circumstances, I am driven to the conclusion that the
subpoena was issued for an improper purpose and therefore amounts
to
an abuse of the process of this court, which falls to be set aside
as such.
Order
For the reasons
set out above, it is ordered as follows:
(a) The subpoena issued by the Registrar of this Court on 13
January 2004 under Case No 4923/03, requiring the Appli­cant to
appear
before this Court on 3 May 2004 and to produce and deliver
documents specified in the Schedule to the said subpoena, is set
aside.
The First Respondent is ordered to pay the applicant’s costs
occasioned by this application.
No order is made with regard to the Second Respondent’s costs
herein.
B M Griesel
1
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA) at 738H – 739B.
2
See
e.g.
S
v Wessels
1966 (3) SA 737
(C) at 739E – G;
Mattheys
and another v Coetzee and another
[1997]
3 All SA 675
(W) at 678
b
–
679
g
;
Beinash
v Wixley, supra
n
at 734G – 735A.
3
Supra
n at 734E.
4
1927
AD 259
at 268.
5
At
734G – 735A (references to other authorities omitted).
6
1970
(1) SA 193
(C) at 195C – E.
7
1990
(3) SA 802
(W) at 808E.
8
See
e.g.
Beaumont
v Beaumont
1987 (1) SA 967
(A) at 993B – H;
Katz
v Katz
1989 (3) SA 1
(A) at 11C – D.
9
Para
above.
10
Supra
n
at 739E – G.
11
Beinash
n
above, at 736I.