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 NO: 045858/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Date: 21 January 2026
In the matter between:
TSHEPO MATJEE 1st APLLICANT
BATSILE BOTLHE PROJECCT DEVELOPMENT 2nd APPLICANT
(PTY) LTD
BAKGATLA AND SONS HOLDINGS (PTY) LTD 3rd APPLICANT
and
M[...] O[...] K[...] M[...] 1st RESPONDENT
FIRST NATIONAL BANK 2nd RESPONDENT
M[...] L[...] M[...] 3rd RESPONDENT
2
PETER
MATJEE TSHEPO JOHANNES 4th RESPONDENT
MASONGANYE SELIAAN SARAH 5th RESPONDENT
BOKANG MORENA TRADING AND PROJECTS 6th RESPONDENT
(PTY) LTD
MALEBANA KGABO LEBESIA N.O. 7th RESPONDENT
JUDGMENT
ALLY AJ
[1] This is an opposed application for the setting aside of a subpoena duces
tecum.
[2] The Applicants were represented by Adv. P. Mafu and the First Respondent
by Mr. S. Twala who has right of appearance in the High Court.
[3] The brief background to the application is that the First Respondent and the
Third Respondent are entangled in divorce proceedings. The Applicants are the
second to fourth defendants in the divorce proceedings instituted by the First
Respondent against Third Respondent.
[4] The First Respondent caused a subpoena duces tecum to be issued out of
this Court calling on the second respondent to produce documents listed in
Annexure A to the subpoena.
3
[5] It must be stated that the said subpoena was not filed on caselines but after
discussions between the representatives of the applicants and the first respondent,
the subpoena was emailed to the judge’s secretary.
[6] It should be stated further that the second respondent has chosen not to
participate in these proceedings.
[7] The applicants contend broadly, that the subpoena mentioned above against
the second respondent, infringes on his privacy and is thus further an infringement
of the Protection of Personal Information Act. 1 Furthermore, the applicants contend
that the information to be produced compromises his business dealings, business
partners and is information requested by a private citizen with whom they have no
relationship. It should be stated that the reference by the applicants to the
Protection of Information Act, is misplaced, without merit and can be rejected out of
hand.
[8] The First respondent contends that this application is dead in the water
because the applicants have not made use of the Superior Courts Act 2, hereinafter
referred to as ‘the Act’, in attempting to set aside the abovementioned subpoena.
The first respondent contends on this ground alone that the application should be
dismissed.
[9] Section 35 and 36 of ‘the Act’ as contended by the first respondent deals
with the procuring of a witness to attend court and the consequences of not
attending.
[10] The first respondent, however, fails to include Rule 38 of the Uniform Rules
of Court as part of the scheme that is used to procure the attendance of witnesses
to Court. Be that as it may, Rule 38 specifically mentions the rights a witness
subpoenaed to attend court has which includes the setting aside of such subpoena.
1 Act 4 of 2013
2 Act 10 of 2013
4
[11] As mentioned above, the second respondent, First National Bank, has
chosen not to participate in these proceedings and therefore, the applicants are not
the witness required to attend court. In fact, First National Bank is cited as a
respondent in these proceedings and not as an applicant.
[12] It must be stated further that the applicants do not make an allegation in the
founding papers that the issuing of the abovementioned subpoena is an abuse of
court process and on t hat ground should be set aside. This Court accordingly does
not deem it necessary to deal with this aspect as it is not before court. Suffice to
state that this Court would have had to interrogate such an allegation as precedent
provides that a subpoena may be set aside where it constitutes an abuse of court
process3.
[13] I agree with the principles set out by my brother Francis J wherein he stated
firstly, the applicants were not the recipients of the subpoena nor was there any
agency alleged or proven on behalf the third party recipients. Furthermore, in
dealing with the abuse of court process, Francis J, correctly in my view, rejected the
abuse of court process argument for the reason that this issue c ould and w ould
probably be dealt with at trial.
[14] Similarly, in this matter, the applicants in casu are not the recipients of the
abovementioned subpoena nor have they alleged or proven any agency on behalf
of the second respondent. Similarly, further the parties to the proceedings at trial
may mention the issue of abuse of court process thus gainsaying any prejudice if
any.
[15] In conclusion therefore, the applicants, for the reasons set out above, have
not made out a case for the setting aside of the subpoena duces tecum issued
against the second the respondent.
3 Porter & Ano v Esportif International (SA) PTY Limited 2023 GPJHC [unreported judgment]
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[16] In respect of costs, it is trite that the Court is vested with a discretion which
must be exercised judiciously. The norm is that costs follow the result and, in my
view, there is no reason why the norm should not apply.
[17] In respect of the scale of the costs, both representatives urged the court to
apply party and party costs and the scale to be set at Scale B. I have considered
these submissions and agree with the scale proposed.
[18] Accordingly, the following Order shall issue:
a). the application is dismissed with costs;
b). the applicants are to pay the party and party costs of the first
respondent, the one paying the other to be absolved and the Scale in terms
of Rule 67A is set a Scale B.
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
Electronically submitted therefore unsigned
Delivered: This judgement was prepared and authored by the Judge whose name
is reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 21 January 2026
Date of hearing: 1 September 2025
Date of judgment: 21 January 2026
Appearances:
Attorneys for the Applicants: MASIPA ATTORNEYS
masipaattorneys@gmail.com
Counsel for the Applicants: Adv. P. Mafu
Attorneys for the 1st Respondent: S. TWALA ATTORNEYS INC
sifiso@stwala.co.za
Counsel for the 1st Respondent: Mr S. Twala [with right of appearance]