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ZITHO, TERENCE
(the prosecutor who requested the Magistrate to
issue the subpoena) THIRD RESPONDENT
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT FOURTH RESPONDENT
THE MINISTER OF POLICE FIFTH RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS:
GAUTENG (JOHANNESBURG) SIXTH RESPONDENT
THE NATIONAL PROSECUTING AUTHORITY
OF SOUTH AFRICA SEVENTH RESPONDENT
JUDGMENT
TWALA J
Introduction
[1] This is an urgent application brought by the applicant, Mr Naadir Cassim. The
application is brought in two parts. In Part A, the applicant seeks an interim interdict
suspending the operation and enforcement of a subpoena issued on the 28 January
2026 by the Magistrate Court, Randburg; in terms of section 205 of the Criminal
Procedure Act 51 of 1977 ("the CPA") pending the final determination of Part B. In
Part B, the applicant seeks to review and set aside the magistrate's decision to issue
the subpoena, as well as the subpoena itself.
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[2] The subpoena requires the applicant to appear before the Randburg Court on 9
March 2026 to testify in connection with an investigation into a fraud case which is
recorded under (Sandton CAS 600/06/2024).
[3] It is noteworthy that the application is only opposed by the sixth respondent, the first
and fourth respondents having filed their notice to abide with the decision of this
Court. Respondents two, three and five are not participating in these proceedings.
Submissions of the Parties
[4] The applicant's primary complaint is that the subpoena is unintelligible. He argues
that the description of the information required from him is vague,
incomprehensible, and grammatically defective. He points to the list of documents
requested, which includes items such as:
“a copy of application, online application (affidavit in terms of section 15(4) of South
Africa’s ECT Act)” and “contra transactions on pdf and excel”
He submits that he cannot possibly know what is required of him.
[5] The applicant also raises several procedural complaints. He argues that the second
respondent, Sergeant Memela (the investigating officer), did not approach him for a
statement before resorting to the drastic measure of a section 205 subpoena. He
contends further that such a subpoena should be the last resort and not primary step.
He further argues that the supporting affidavit deposed to by Sergeant Memela fails
to establish the necessary jurisdictional facts for the issuing of the subpoena,
specifically that he is likely to possess material information relating to the alleg ed
offence.
[6] Furthermore, the applicant contends that the matter is urgent because if the subpoena
is not suspended before 9 March 2026, he will be compelled to appear in court and
faces the threat of arrest and prosecution for non-compliance, as warned on the face
of the subpoena. He explains the delay in bringing the application by outlining the
steps he took after being served with the subpoena on 30 January 2026, which
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included approaching Mr Mohamed to find out about the subpoena and consulting
with an attorney and counsel.
[7] As indicated above, t he sixth respondent, the Director of Public Prosecutions, is
opposing the application with its answering affidavit deposed to by Advocate Z
Peck, an Acting Deputy Director of Public Prosecutions. The sixth respondent raises
several points in limine and on the merits.
[8] First, it is submitted that the applicant has failed to make out a case for urgency. It
is contended by the sixth respondent that the applicant has an alternative remedy
readily available to him: he can appear before the magistrate on 9 March 2026 and
raise all his objections to the subpoena at that hearing. The magistrate's court, which
issued the subpoena, is the proper forum to first challenge its validity.
[9] Furthermore, the sixth respondent denies that the subpoena was issued improperly.
It is averred that Sergeant Memela did in fact contact the applicant before obtaining
the subpoena and explained to him what information was required and why. The
applicant’s professed i gnorance of the nature of the investigation is therefore
disingenuous.
[10] The sixth respondent further clarifies in its answering affidavit the link between the
applicant and the investigation. The supporting affidavit (annexure "NC3") which
was deposed to by Sergeant Memela reveals that an amount of R4,550,000, alleged
to be the proceeds of theft and fraud from the Industrial Development Corporation
(IDC), was deposited into the applicant's business account, N2 Auto. The
information sought in the subpoena is aimed at tracing these funds and
understanding the transaction. The applicant, as the recipient of these funds, is
clearly a person who is likely to be able to furnish material information.
[11] It was submitted further by the sixth respondent that the magistrate was fully entitled
to issue the subpoena as a legitimate investigative tool. The absence of the
to issue the subpoena as a legitimate investigative tool. The absence of the
magistrate's full name s on the subpoena is not a fatal defect since it is on the
letterhead of the Magistrate Court and bears the official stamp of that court . The
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respondent also raise s a concern regarding the applicant's legal representatives,
Shaheed Dollie Incorporated, noting that they also represent Mr Rafik Mohamed,
one of the suspects in the very same investigation, which raises potential ethical
issues.
Discussion
[12] The principles regarding interim interdicts are well -established. An applicant must
show a prima facie right, a well -grounded apprehension of irreparable harm, a
balance of convenience in his favour, and the absence of any other satisfactory
remedy. Even i f one were to assume the applicant has a prima facie right, his
application stumbles fatally on the last requirement.
[13] I am not persuaded that the applicant has made out a proper case for the urgent
interim relief he seeks in Part A. The application must fail on the grounds of lack of
urgency and the existence of a plain and adequate alternative remedy.
[14] The applicant's proper course of action is to appear before the Randburg Magistrate's
Court on 9 March 2026. At that hearing, he will have a full and fair opportunity to
place all his objections before the presiding magistrate. He can argue that the
subpoena is vague, that the jurisdictional facts for its issue were not met, and that it
constitutes an abuse of process. The magistrate is fully competent to hear these
arguments and to set aside the subpoena if he or she finds them to have merit. This
is the very purpose of the return date specified in the subpoena.
[15] The applicant's claim that he cannot understand the subpoena rings hollow in the
face of the sixth respondent's answering affidavit, which clearly and concisely
explains its purpose: the investigation into the deposit of R4.55 million, allegedly
stolen from the IDC, into the applicant’s company’s account. The applicant himself
admits in his founding affidavit that he knows Mr Rafik Mohamed and his son, and
that he was informed of a criminal investigation involving them. The connection
that he was informed of a criminal investigation involving them. The connection
between himself, the Mohamed family, and the disputed funds is therefore apparent.
He cannot now claim to be a bewildered outsider with no knowledge of the matter.
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Moreover, the applicant does not deny that a sum of R4.55million was deposited
into his business account.
[16] The facts of this case are distinguishable from those where a witness is genuinely
unaware of the subject matter of the inquiry. The applicant's real complaint appears
to be that he has been drawn into a dispute he considers civil in nature, and that the
criminal justice system is being used improperly. These are precisely the kind of
submissions he can and should make before the magistrate on 9 March 2026. This
court is not the correct first port of call for such a challenge.
[17] Additionally, the applicant's delay in bringing the matter also undermines his claim
of urgency. While he explains the steps he took, the fact remains that the alleged
defects in the subpoena were apparent on its face on 30 January 2026. The matter
could and should have been enrolled in the ordinary course. The urgency in this
matter is self-created.
[18] A litigant cannot bypass established legal processes and create urgency by waiting
until the eve of a court date, especially when the lower court seized with the matter
is perfectly capable of providing the necessary relief. To hold otherwise would open
the floodgates for every recipient of a subpoena to bypass the magistrate's court and
seek urgent relief directly in the High Court, paralysing criminal investigations.
[19] Regarding the condonation application for the late filing of the sixth respondent's
answering affidavit, I am satisfied that it is in the interests of justice to grant it. The
explanation that counsel was engaged in a High Court trial is reasonable, and th e
respondents have raised substantive points on the merits.
Conclusion
[20] The ineluctable conclusion is therefore that this application constitutes an abuse of
the court's process. The applicant has a clear and effective remedy before the
magistrate's court. There is no reason why this court should be approached to grant
interim relief in these circumstances.
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Tel: 011 483 9933
Email: reception@sdollieinc.co.za
For the Respondent: Advocate M Molefe
Instructed by: Office of the State Attorney
Tel: 011 330 7880
Email: framoraswi@justice.gov.za
This judgment and order 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 of
the order is deemed to be the 5 March 2026.