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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 2023-130769
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
28 August 2025
In the matters between:-
JONATHAN HENDRICKS First Applicant
TRACY HENDRICKS Second Applicant
ROZELDA MEYER Third Applicant
and
JOHN FREDERICK SCHICKERLING N.O. First Respondent
NADASEN MOODLEY N.O. Second Respondent
JOHANNES ZACHARIA MULLER N.O. Third Respondent
PHP ARMED RESPONSE (PTY) LTD Fourth Respondent
THE MASTER OF THE HIGH COURT – PRETORIA Fifth Respondent
JUDGMENT
H F JACOBS, AJ
[1] This is an application for the review and annulment of three subpoenas
issued by Mr Schickerling, a commissioner conducting an enquiry under sections
417 and 418 of the Companies Act of 1973 into the affairs of Mamba PHP
(Proprietary) Limited (“Mamba PHP”) and a ruling he made in that capacity on 21
August 2023. Mamba PHP is subject to final liquidation. On 3 August 2023, Mr
Schickerling issued the three subpoenas for Mr Hendricks, Ms Hendricks, and Ms
Meyer to attend an enquiry into the affairs of Mamba PH P on 21 and 22 August
2023. The three subpoenas are, in all material respects, identical. The subpoena
directed at Mr Hendricks reads as follows:
“BEFORE THE MASTER OF THE HIGH COURT OF SOUTH AFRICA
(JOHANNESBURG)
Master Ref: 1002813/2022
IN THE MATTER BETWEEN:
PHP SECURITY NORTH WEST
PROPRIETARY LIMITED Applicant
and
MAMBA PHP PROPRIETARY LIMITED Respondent
REGISTRATION NUMBER 2019/521787/07 (IN LIQUIDATION)
SUBPOENA IN TERMS OF SECTIONS 417 AND 418 OF THE
COMPANIES ACT, 61 OF 1973
TO: THE SHERIFF OR HIS DEPUTY
INFORM: JONATHAN HENDRICKS
1[...] P[...] Street
E[...]
Edenvale
Gauteng
THAT he is hereby required to appear in person before Mr John Frederick (Derek)
Schickerling "Commissioner") al the Enquiry at Town Lodge Johannesburg Airport,
5[...] H[...] Road, H […] Ext 2, Germiston on 21 and 22 August 2023 and 5 to 8
September 2023 at 10h00 in the forenoon and to remain present until being excused
by the Commissioner at the time and place as aforesaid and there and then given
information under oath concerning Mamba PHP Proprietary Limited (in liquidation)
("Estate"), or concerning the administration of the Estate, or concerning, any claim or
demand made against the Estates, or concerning any indebtedness to the Estate.
He is furthermore required to bring with him and to produce ail books, documents,
accounts and/or correspondence in whatever form, electronically or otherwise,
relating to the affairs of the Estate or any of its related entities, and produce same at
the enquiry.
AND FURTHER THAT if he fails to appear as aforesaid at the time and place
aforesaid, and having no lawful impediment (made known to the Commissioner at
the time of its sitting and allowed by it) it may constitute an offence in terms of
Section 418 of the old Companies Act.
AND FURTHER THAT he is entitled to be represented at the enquiry by an attorney
and/or an advocate at his own cost. The non availability of a particular legal
representative does not constitute good reason to ignore this subpoena.
AND FURTHER THAT at the Enquiry he will be ordered in terms of Section 417(3) of
the Act to produce the documents as s et out in Annexure "A" hereto 1. In order to
save time and a possible further appearance by him, he is requested to bring the
aforesaid documents with him to the Enquiry.
AND FURTHER THAT he is entitled to testily in the language of his choice.
AND FURTHER THAT his evidence will be recorded. He is entitled to a copy of his
evidence at his own cost. His evidence may not be used against him directly in
criminal proceedings but may be used against him in civil proceedings.
AND FURTHER THAT the Commissioner shall ensure that he is treated politely
during the enquiry that he is not harassed or subjected to unduly repetitive or
irrelevant questions or to questions that might elicit an answer that might incriminate
him.
Failure to be present as demanded constitutes an offence in terms of the Act
punishable by a fine and/or imprisonment.”
punishable by a fine and/or imprisonment.”
[2] The underlined sentence is referred to in evidence and has caused some
controversy. More about that presently.
1 The underlining is mine
[3] At the enquiry , the applicants’ attorney appeared on their behalf and
informed Mr Schickerling as follows:
“Attorney: Thank you, Mr Commissioner, what I’m going to do is I’m going to
make a number of statements. Just to put them on record and then I am going to
excuse myself. The first statement to go on record is that there was a second
meeting of creditors on Friday in Germiston and that meeting of creditors was
postponed because I asked the liquidators representative for details of the two
proven claims and I’m going to come back to what I mean by details in a few
moments. And one of the resolutions that w as to be adopted at the second meeting
of creditors was in fact to convene an inquiry. So at this stage there’s no resolution
by the liquidators and the creditors to convene this inquiry. So this inquiry is
premature. It’s illegitimate. That’s my first point. My next point is that I want to talk
about the subpoenas before I deal with the proven claims. Mr Commissioner, with
all due respect you did not apply your mind to issue of these subpoenas, if they were
indeed properly issued subpoenas. They don’t bear any endorsement from the
Master’s office. I’m not sure if that’s necessary or not. But I just want to refer you to
the substance of these subpoenas before I talk about the case authority. The first
subpoena and what I say applies equally in respect of all three subpoenas. The first
subpoena I’m reading from that of Jonathan Hendricks, what you’ve allowed the
creditor to subpoena is as follows, All books, documents, accounts and or
correspondence in your possession in whatever form electronic or othe rwise relating
to the affairs of Mamba PHP (Pty) Limited [in liquidation] or, very important word or
any one of the following entities. So what you’ve allowed is a subpoena to be issued
demanding that my clients bring along information relating to a list of a entities A to
Q, to bring all of their financial information, that’s not correct because you should
Q, to bring all of their financial information, that’s not correct because you should
have asked and I’m going to refer you to (inaudible) in a moment, you should have
asked what is the relationship of these entities of the company in liq uidation and you
should not have allowed a fishing expedition and likewise Ms Manalios should not
have come to you and asked to issue a subpoena without proper motivation. And I
can’t find any motivation other than a fishing expedition for all these entities because
most of these entities, some of which are dormant or may have even been
deregistered have never done business with the company in liquidation.”
[4] The applicants’ attorney informed Mr . Schickerling of the applicants’
challenge to his (Mr . Schickerling’s) decision to insist on the supply of documents
concerning the entities listed on annexure “A” to the subpoenas.
[5] During his address, the applicants’ attorney, relying on the judgment of
the Supreme Court of Appeal in Beinash, suggested that the subpoenas issued by
Mr Schickerling amount to an abuse of process, lack a legitimate purpose, and
constitute a “fishing expedition', while the liquidators accepted as proved claims
against Mamba PHP that are without substance or merit. The applicants were not
present at the inquiry, and their attorney made it clear from the outset that he would
leave the proceedings after concluding his address. He did so.
[6] After the applicants’ attorney and other legal representatives address ed
Mr Schickerling, he ruled as follows:
“Commissioner: I’m ready to give my ruling. Mr Hood, Mr Hood’s instruction is
that his client are not going to appear before these proceedings, subpoenas were
issued by myself in terms of the provisions of section 418(2) of the Companies Act,
Act 61 of 1973. They were all accompanied by motivation that was premised on the
application that brought about the inquiry. I am satisfied that the subpoenas that are
issued were proper. I applied my mind and the law in issuing them. The objection
raised by Mr Hood is that certai n documents that were sought in the subpoena were
improper and that no proper case was made out for them. I make a distinction
between the attendance of the witness and the documents that the witness is
required to produce. I am satisfied that the witness is capable of giving evidence
and I’m also satisfied that the documents sought is relevant. To the extent that there
is an objection to relevance that objection must be addressed to me in person under
oath as a matter of evidence and I can rule on each and every of those documents
oath as a matter of evidence and I can rule on each and every of those documents
on a case by case basis. The second issue raised by Mr Hood is that there appears
to be no authority for the convening of this inquiry, he premises that submission on
the fact that certain resolutions were placed before creditors at a second meeting of
creditors that was convened before the magistrate Germiston on Friday the 18 th
August. Mr Hood contends that because those resolutions were not adopted that
these proceedings are in irregularity for lack of authority. What Mr Hood does not
appreciate is that there are two inquiries that are capable of being convened. That in
terms of section 417 read with 418 which is the current inquiry there is also a
separate manner in which witnesses can be interrogated, that is in terms of section
415 where meetings of creditors are postponed before the magistrate or the Master
as the case may be. The fact that those resolutions weren’t adopted by creditors
insofar as section 415 is concerned is of no moment to these proceedings. These
proceedings have been authorised by the Master and they stand until they have
been set aside. Mr Hood also asks for these proceedings to be postponed so that an
application for expungement can be brought by his clients, a creditor of that insolvent
company. The, even if those claims were to be expunged they do not have any
bearing on the locus standi of the current applicant. I say this and I quote
Henochsberg directly when I refer to the general note under section 417, “that a, any
person having an interest in the company is entitled to bring an application for an
inquiry even a person having no financial i nterest or other interest” and I refer to the
authorities listed there. My ruling then is that there is no legitimate purpose to
excuse Mr Jonathan Hendricks and Ms Tracy Hendricks from these proceedings.
They have been properly served with subpoenas. A proper case has been made out
of their attendance and the relevance of their testimony and I find no congical reason
why they could not appear today. Insofar as Ms Rosalda De Mayer is concerned
although I did not hear submissions on her testimony I note from the subpoena that
her, from the return of service that she was only served on the 14 th August, that is
not sufficient time to my mind for her to be in appearance and am willing to excuse
her from these proceedings. That is my ruling.
Mr Hood: Mr Commissioner, can I just clarify one of yours statements please.
Commissioner: Yes
Mr Hood: If I may. These are formal proceedings. You said that the subpoenas were
Mr Hood: If I may. These are formal proceedings. You said that the subpoenas were
accompanied by motivation and that you applied your mind to that motivation, is that
correct?
Commissioner: Yes
Mr Hood: Thank you.
Commissioner: Mr Hood there is, Mr Van Der Merwe did indicate that there is an
opportunity, there is a further date for these proceedings 5 to 8 September. In light of
my ruling do you want to take instructions on your client’s availability between the 5 th
or the 8 th of September? If your clients are not willing to voluntarily provide their,
make themselves available I am going to issue a directive that they appear.
Mr Hood: You, Mr Commissioner with all due respect you may do what you wish.
Mr instructions are after your rulings to leave.
Commissioner: Thank you Mr Hood. Thank you. We can go off record to
excuse Mr Hood.”
[7] Dissatisfied with the subpoenas and the ruling during the proceedings on
21 August 2023, the three applicants initiated these review proceedings under Rule
6 of the Uniform Rules of Court early in December 2023. In paragraph 19 of their
founding affidavit, the applicants state their challenge to the subpoenas as follows:
19 It is submitted that:
19.1 the conduct of First Respondent in issuing the subpoenas is procedurally
unfair as envisaged in Section 6(2)(c) of the Promotion of Administrative
Justice Act No 3 of 2000 ("PAJA") alternatively Is so unreasonable that no
reasonable person could have made the finding to Issue the subpoenas
as envisaged in Section 6(2)(h) of PAJA.
19.2 the Ruling of First Respondent that the subpoenas are "proper" is
procedurally unfair as envisaged in Section 6(2)(c) of PAJA alternatively is
so unreasonable that no reasonable person could have made such a
finding, as envisaged in Section 6(2)(h) of PAJA;
[8] The first applicant states in his papers the following facts and make s the
following assertions in support of the application:
“28. It is correct that I was a director, and it is correct that the Second Applicant was
employed by the company in liquidation as a financial manager. However, this
does not mean that the Second Applicant has all the information at her disposal
as set out in the subpoenas. She is neither a director nor shareholder in the
multiple companies specified in the subpoena.
29. With respect to the Third Applicant, her employment is historical, and she does
not have any documents from her time where she was employed by the
company in liquidation.
30. It follows quite logically, that Second and Third Applicants would not have at
their disposal any information relating to the affairs of the company in
their disposal any information relating to the affairs of the company in
liquidation nor the companies in the subpoenas.
and
33. Parsons and her husband on behalf of Fourth and Fifth Respondents are
competitors of not only Mamba Strike Force but the Mamba Group.
34. They have adopted a vindictive approach to the group and seek to steal the
clients of the Mamba Group.
35. This is why the information that they have sought is challenged because they
require details of clients and addresses (which calls into question the issue of
POPIA) where there is no basis for them to be given that Information.”
[9] Mr Schickerling and the fourth and fifth respondents oppose an order
requiring the three applicants to comply with the issued subpoenas. All three
applicants, Mr Schickerling, and the fourth and fifth respondents, who are creditors of
Mamba PHP, were represented before me. The two liquidators and the Master did
not take part in the proceedings.
[10] It is a common cause that Mr. Schickerling has been appointed as a
commissioner to gather evidence in connection with the winding up of Mamba PHP.
Under sections 418(1) and (2) of the Act, the commissioner has the same powers as
the Master outlined in section 417. The collection of evidence under these sections
aims to gather information about a company’s affairs, and once obtained, it remains
confidential. The reasons for establishing a statutory enquiry and the investigational
powers possessed by the Mast er and a Commissioner have been reiterated many
times by our courts and courts in jurisdictions similar to ours. The excerpt from
Megarry J's judgment in Rolls Razor conveniently records some of the reasons for
the existence of such a process, as follows:
“The process … is needed because of the difficulty in which the liquidator in an
insolvent company is necessarily placed. He usually comes as a stranger to the
affairs of the company which has sunk to its financial doom. In that process, it may
well be that some of those concerned in the management of the company, and
others as well, have been guilty of some misconduct or impropriety which is of
others as well, have been guilty of some misconduct or impropriety which is of
relevance to the liquidation. Even those who are wholly innocent of any wrong -doing
may have motives for conceali ng what was done. In any case, there are almost
certain to be many transactions which are difficult to discover or to understand
merely from the books and papers of the company. Accordingly, the legislature has
provided this extraordinary process so as to enable the requisite information to be
obtained. The examinees are not in any ordinary sense witnesses, and the ordinary
standards of procedure do not apply. There is here an extraordinary and secret
mode of obtaining information necessary for the proper conduct of the winding up.”
[11] Our Constitutional Court has considered and pronounced on sections 417
and 418 of the Act over the past decades in Levin2 and Bernstein3, and our Supreme
Court of Appeal in Gumede4, Roering5 and Smith6.
[12] The first and second applicants' challenge to the subpoenas at the enquiry
on 21 August 2023 was unfounded and inconsistent with the legal principles
applicable to enquiries of this nature. The third applicant was not required to comply
with her subpoena on 21 August 2023, as it was served on her late, and a judicial
review of her subpoena was unnecessary. The applicants referred to the enquiry
before Mr Schickerling as a “fishing expedition”. According to their view, every
statutory enquiry amounts to a fishing expedition.
[13] Mr Schickerling asserts, correctly in my view, that his authority to request
documentation from the three applicants to assess the merits and demerits of the
allegations concerning R16 000 000 of Mamba PHP funds allegedly transferred to
other entities is valid. If the applicants intend to challenge their obligations to comply
with the subpoenas, they have the right to do so under the legislation at the inquiry
(with legal representation). The legislation explicitly safeguards the confidentiality of
the information presented before a commissioner in this context. Their objections
regarding the “over broad” descriptions of documents and the difficulty in complying
with the subpoenas are issues that can be raised, and evidence on these points can
be presented during the enquiry.
[14] The applicants rely on the PAJA 7 and allege that the decision of Mr
Schickerling to issue the subpoenas and to make the ruling mentioned above
Schickerling to issue the subpoenas and to make the ruling mentioned above
constitutes an administrative action and must be set aside in terms of that act.
2 Ferreira v Levin NO and Others: Vryenhoek and Others v Powell NO and Others 1996 (1) SA
984
3 Bernstein and Others v Bester NO and Other 1996 (2) SA 751 (CC)
4 Gumede v Subel NO 2006 (3 SA 498 (SCA)
5 Roering NO v Mahlangu 2016 (5) SA 455 (SCA)
6 Smith v Master of the High Court, Bloemfontein 2023 (4) SA 554 (SCA)
[15] The applicants argue that the redacted sections of the annexure to the
subpoena and the limited information available to Mr Schickerling prevent them from
being properly and lawfully informed, making the process, as they state in paragraph
19.1 of their founding affidavit, “procedurally unfair” as envisaged by section 6(2)(c)
of the PAJA.
[16] In my view, there is nothing unreasonable or improper about Mr
Schickerling's decision within the applicable statutory context, and no grounds for
review exist as envisaged by the PAJA. A liquidator and commissioner may have
reasons for choosing not to disclose their intentions until a specific stage of an
enquiry. The law does not entitle everyone who is required to appear at an enquiry
under these provisions to be informed of the reasons for their summons or why a
particular document is requested. Doing s o would undermine the purpose of the
statutory provisions. The applicants are not witnesses in the usual sense, and the
circumstances of an enquiry may require, as they often do, that the “ordinary
standards of procedure” applicable to subpoenas duces tecum under Rule 38 do not
apply. The applicants’ reliance on Wixley (supra) is misplaced and quoted out of
context.
[17] The application lacks merit. The applicants' failure to appear at the
proceedings on 21 August 2023 was a clear breach of the law, which has been well
established for many years. The applicants benefited from the ruling and the
assertions of the first respondent from the beginning but continued to oppose the
process and those responsible for managing the inquiry. They instructed their
representatives to advance contentions that undermine the procedure outlined in
Chapter XIV of Act 61 of 1973. Their conduct has caused the other litigants to incur
unnecessary costs, which could have been avoided had the applicants adhered to
the law. I will grant a costs order that expresses disapproval of the applicants’
the law. I will grant a costs order that expresses disapproval of the applicants’
conduct and aims to compensate the opposing litigants for the expenses they had to
bear.
I make the following order:
7 Promotion of Administrative Justice Act of 2000
1. The application is dismissed.
2. The counter application is upheld, and the applicants are ordered to
attend the enquiry into the affairs of Mamba PHP (Proprietary) Limited
convened by the first respondent in accordance with sections 417 and 418
of the Companies Act 61 of 1973, when it resumes, after written notice to
them of the date, time, and venue of the enquiry not less than 14 days
before the resumed enquiry.
3. The applicants are ordered to produce at the resumed enquiry the
documents listed in the written notice to them mentioned in paragraph 2
above.
4. The first, second, and third applicants are ordered to pay the costs of the
first, second , and third respondents of the application and counter
application on a scale as between attorney and client.
H F JACOBS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail. The date and time for hand -down is on the
22nd of August 2025 at 10h00.
DATE OF HEARING: 15 AUGUST 2025
DATE OF JUDGMENT: 28 AUGUST 2025
APPERANCES
Attorneys for applicant: MJ HOOD & ASSOCIATES
Email: martin@mjhood.co.za
Counsel for Applicant: Adv M Snyman SC
Email: msnyman@snymanfamilie.co.za
Attorneys for 1st Respondent: Schickerling Inc
Email: derek@dslegal.co.za
Counsel for 1st Respondent: Adv L Acker
Email: lizelle@ackerlaw.co.za
Attorneys for 4th & 5th Respondents: Andersen Attorneys
Email: Keshia.manolios@za.anderson.com
Counsel for 4th & 5th Respondents: Adv HA Van Der Merwe
Email: heinicloud@icloud.com