IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2026-014767
In the matter between:
ANEL LATEGAN First Applicant
LATEGANMULLER GROUP (PTY) LTD Second Applicant
and
JOHANNES JACOBUS THERON N.O. First Respondent
DANIESE ELAINE STEYN N.O. Second Respondent
MASTER OF THE HIGH COURT OF SOUTH AFRICA Third Respondent
(Western Cape Division)
HONOURABLE MAGISTRATE MAARS Fourth Respondent
(Magistrates’ Court, Bellville)
PHIA VAN DER SPUY Fifth Respondent
CAP CHARTERED ACCOUNTANTS INC Sixth Respondent
TIAAN LATEGAN Seventh Respondent
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 11 March 2026
Delivered: Electronically on 16 March 2026
Summary: Subpoenae – set aside – abuse of court process – ambit too wide –
most documents not relevant to s 415 insolvency enquiry – single person to
provide documents in more than one capacity without distinguishing between
roles
ORDER
1. The following three subpoenae duces tecum issued by the fourth
respondent on 2 December 2025 in terms of the provisions of section
414(2)(b) of the Companies Act 61 of 1973, in her capacity as the
appointed commissioner and agent for the third respondent in terms of
section 39 of the Insolve ncy Act 24 of 1936 (read with section 339 of the
aforenamed Companies Act) are set aside:
1.1 the subpoena directed at the first applicant (annexure AL29 to the
founding affidavit);
1.2 the subpoena directed at the sixth respondent (annexure AL31 to
the founding affidavit); and
1.3 the subpoena directed at the seventh respondent (annexure AL30
to the founding affidavit).
2. The first, second and fifth respondents shall pay the costs of the
application, with Scale C applying to counsel’s fees, the one paying, the
other being absolved pro tanto.
JUDGMENT
INTRODUCTION
[1] This is an application in which the first and second applicants seek the
setting aside of three subpoenae duces tecum that were issued on 2
December 2025 by the fourth respondent acting as the duly appointed
agent of the third respondent for purposes of an enquiry into the affairs of
Lategan Trading (Pty) Ltd (in liquidation) in terms of the provisions of
section 415 of the 1973 Companies Act (“the enquiry ”). The subpoenae
were addressed to the first applicant, the sixth respondent and the seventh
respondent.
[2] The subpoenae were issued on the request of an attorney acting for the
joint liquidators (the first and second respondents) as well as the fifth
respondent (“Van der Spuy”). The subpoenae required that the documents
listed therein be delivered to the attor ney’s office – as opposed to the
Bellville Magistrates’ Court where the enquiry will be held – by no later
than 6 February 2026.
[3] The applicants launched an urgent application on 26 January 2026, set
down for hearing on 5 February 2026, seeking the set ting aside of the
three subpoenae. They did so as they aver that the documents are not
relevant to the enquiry, that the documents contain privileged tax
information, and were requested for an ulterior purpose as part of an
agenda to extort money from the applicants and the seventh respondent
as well as trusts linked to the first applica nt, which constitutes an abuse of
process.
[4] The matter was heard in the fast lane and postponed for hearing to 11
March 2026 . The subpoenae were set aside on a provision al basis
pending the final adjudication of this matter . The only person opposing the
application is Van der Spuy, the first and second respondents (“ the
liquidators”) as well as the sixth respondent (“ CAP”) having filed notices to
abide. Van der Spuy appeared in person at the hearing.
THE RELEVANT FACTS AS PER THE FOUNDING AFFIDAVIT
[5] The first applicant is the wife of the seventh respondent (“ Lategan”) who
was the sole director of Lategan Trading (the latter traded as a residential
and small works construction concern). They are married out of community
of property and Lategan is an unrehabilitated insolvent . The first applicant
is a director and shareholder of half the shares issued in the second
applicant (“ LMG”). The other shareholder (“Mrs M uller”) is the second
director. LMG is a creditor of L ategan Trading, as it had overpaid L ategan
Trading on projects, but it has not submitted a claim to the liquidators.
[6] Before Lategan Trading was placed in liquidation, a dispute between it and
Van der Spuy went to arbitration. Lategan, as director, had cancelled a
contract with Van der Spuy after she refused payment of an invoice. By the
time the award was made, the company was already in liquidation. T he
award went against Lategan Trading as the arbitrator found that Van der
Spuy had over -paid. He also awarded her penalties, mora interest and
reimbursement of her contribution to the arbitrator’s fees . His award noted
that, consequent upon his finding that the cancellation of the contract was
wrongful, Van der Spuy may have been entitled to pursue damages. Van
der Spuy has allegedly seized upon this and formulated an artificial,
inflated and vexatious d amages claim exceeding R3,4 million, which she
has not directed against the liquidators but is pursuing against LM G, the
first applicant (“Mrs Lategan”), and various trusts allegedly associated with
Mrs Lategan, through application of improper pressure.
[7] The liquidators’ second meeting report made it clear that Lategan Trading
constitutes a contribution estate and all the proven concurrent creditors
(such as Van der Spuy) will be liable to contribute towards the costs of
liquidation. Van der Spuy has allegedly, for this reason, embarked upon a
course of action aimed at improperly extorting money from third parties,
including the applicants . She does so by seeking financial disclosure of
irrelevant and privileged documents. The liquidators are effectively
participating in, and thereby aiding and abetting, her improper conduct. To
combat assertions, by Van der Spuy, of improper conduct, LM G instructed
CAP to prepare an independent report of factual findings relating to
transactions between Lategan Trading a nd LM G using the bank
statements of both entities.
[8] A Mr Wessel Muller (“ Muller”) approached Lategan during 2019 with a
business opportunity. Muller was involved in identifying and acquiring land
and packaging development opportunities and was looking for a
construction company with a proven track -record to become involved in
these development projects. Muller and Lategan agreed that Lategan
Trading would undertake construction work for development companies
associated with Muller. LMG was activated in 2022 using an existing shelf
company owned by Lategan. When LMG was activated Lategan resigned
as he was the director of Lategan Trading and it was considered
appropriate to maintain separation between the two entities. LMG was
structured as a family busin ess. LMG secured three projects and
appointed Lategan Trading as subcontractor. Two projects were completed
successfully. The third one could not be completed by Lategan Trading
due to its financial difficulties.
THE RELEVANT FACTS AVERRED BY THE FIFTH RESPONDENT
[9] Van der Spuy denies acting improperly, averring that the Lategan couple
are friends with the Mullers (which includes the second shareholder and
director of LM G), and that, as a chartered accountant trained in forensic
analysis of financial documents, she must follow a trail in order to prove or
disprove her hypothesis . She avers that, as a creditor, she has a right to
interrogate parties and to demand documents which have a bearing on the
enquiry. She filed two lengthy answering af fidavits – in the supplementary
affidavit expanding on her answers in the main answering affidavit – as
well as a third brief affidavit with lengthy annexures. The affidavits were
prepared by Van der Spuy, acting in person as her attorney had
withdrawn.
[10] Her opposition to the relief sought has been summarised in a table in her
first answering affidavit. Therein she explains, with reference to the
documents sought, why she seeks the delivery of the documents. I do not
expand on the averments contained in the three answering affidavits. Her
motivation is summarised below:
[10.1] She seeks Mrs Lategan’s personal bank statements as she
believes that LMG is Lategan’s new venture and that his wife is
acting as his front.
[10.2] Mrs Lategan’s personal tax retu rns and assessments are required
as the organogram provided by LMG shows that Lategan is now
the Head of Development at LMG even thought he avers he is not
receiving a salary. She bases her belief on large, varying
payments made by LMG to Mrs Lategan, whic h she believes
(given the dynamics of the parties) to be income actually earned
by Lategan Trading. Lategan’s word alone cannot be trusted as his
evidence at the enquiry was full of contradictions. SARS is the
most objective and effective source of information.
[10.3] With regards the four trusts listed in the subpoena and the
documents sought in that regard, she avers that when Lategan
was confronted about a R16 500 payment to Destinata (a
company specialising in property investment and trust services) he
alleged that no trust was ever registered, which evidence was
untruthful. As such this raised ‘red flags’ and she fears that assets
of Lategan Trading may have been funnelled to these trusts.
[10.4] She seeks the information concerning LMG as she believes it
would be remiss of her not to corroborate all information as
unlawful actions are prejudicial to creditors. She believes it is
highly unlikely that Mrs Lategan and Mrs Muller are actually the
directors of LMG. It is more likely, in her view, that Latega n is the
director given his background. She seeks documents to show what
their true roles are in the company. The appointment of Mrs
Lategan and Mrs Muller places the parties in a position to redirect
assets to other entities. And she wants to know whether funds are
being shifted to the Lategan family through companies and trusts.
[10.5] She wants to establish whether there are any amounts receivable
from LMG by Lategan Trading – as Lategan has shown himself to
be untruthful , it would be remiss of her not t o require that his
explanations be verified. Tax returns are the final output
documents to corroborate his evidence. She noticed large
transactions to and from LMG and Lategan Trading in bank
statements and wishes to establish the nature of the transaction s
and whether any may constitute loans as Lategan Trading may
have a loan claim against LMG. This because Lategan was
dishonest – she wants to inspect the general ledgers, trial
balances and the annual financial statements to verify the
information. This i s particularly required as she learned that LMG
intends to amend its annual financial statements and to resubmit to
SARS.
[10.6] She does not accept the CAP report as it only summarises a
selected set of transactions between Lategan Trading and LMG.
She disputes that the CAP report supports a finding that Lategan
Trading is indebted to LMG. CAP only had access to limited
information. She wants to cross -check their sources for existence,
completeness and accuracy. She noted that there were several
large transactions to and from LMG and Lategan Trading noted on
their bank statements. She wants CAP to furnish documents to
determine how it concluded that LMG is a creditor in Lategan
Trading.
[10.7] She has identified suspicious transactions on the bank statemen ts
of Lategan Trading and believes that substantial payments were
made to a person or entities connected to the Lategan family as
the payments were made after LMG was established. The
payments are referenced “Absa Bond” or “From Loan Acc.” If there
was no legitimate reason for these payments, then these
payments constitute loans recoverable by Lategan Trading. She
also flagged a payment to “WSS Property” which she believes to
be an entity related to Muller.
[10.8] She believes that Lategan has channelled to Mrs Lategan
payments received by Lategan Trading (an asset in its estate) for
the use of the Lategan -family and that these amounts can, if
proven to be an asset, be recovered by the liquidators. Mrs
Lategan’s tax returns will establish the na ture of the payments
made to her.
THE RELEVANT STATUTORY FRAMEWORK AND LEGAL
PRINCIPLES
[11] A subpoena, such as the subpoenae issued by the fourth respondent (“ the
magistrate”), may be set aside by the Court on review in terms of section
151 of the Insol vency Act, which is made applicable under section 339 of
the 1973 Companies Act. Section 151 reads as follows:
Subject to the provisions of section 57 any person aggrieved by any decision,
ruling, order or taxation of the Master or by a decision, ruling or order of an officer
presiding at a meeting of creditors may bring it under review by the Court and to
that end may apply to the Court by motion, after notice to the Master or to the
presiding officer, as the case may be, and to any person whose interests are
affected: Provided that if all or most of the creditors are affected, notice to the
trustee shall be deemed to be notice to all such creditors; and provided further
that the Court shall not re -open any duly confirmed trustee’s account otherwise
than as is provided in section 112.
[12] It is generally accepted that section 151 provides for a review in the very
widest sense. It has been characterised as being of the third type of review
identified by Innes CJ in Johannesburg Consolidated Investment Co v
Johannesburg Town Council ,1 being a proceeding in which the Court
may enter upon and decide the matter de novo , exercising not only the
powers of a court of review in the legal sense, but also having the
functions of a court of appeal, wit h the additional privilege of being able,
after setting aside the decision arrived at by the tribunal or functionary
concerned, to deal with the whole matter upon fresh evidence as if it were
the decision -maker of first instance. A review in terms of section
151 therefore affords scope for the Court to enter into the merits of the
impugned decision in a way that would not be permissible in conventional
administrative law review.2
[13] Section 414(2) of the 1973 Companies Act reads as follows:
The Master or officer who is to preside or presides at any meeting of creditors,
may subpoena any person-
(a) who is known or on reasonable grounds believed to be or to have been in
possession of any property which belongs or belonged to the company or to
be indebted to the company, or who in the opinion of the Master or such other
officer may be able to give material information concerning the company or its
affairs, in respect of any time before or after the commencement of the
winding-up, to appear at such meeting, including any such meeting which has
winding-up, to appear at such meeting, including any such meeting which has
been adjourned, for the purpose of being interrogated; or
1 1903 TS 111.
2 See Gilbey Distillers & Vintners (Pty) Ltd and Others v Morris NO and Another 1991 (1) SA
648 (A) 655G-J, and Cooper NO and Others v South African Mutual Life Assurance Society
and Others 2001 (1) SA 967 (SCA) at para [11].
(b) who is known or on reasonable grounds believed to have in his possession or
custody or under his control any book or document containing any such
information as is referred to in paragraph (a), to produce that book or
document or an extract therefrom at any such meeting or adjourned meeting.
[14] The provisions contained in s ection 414(2) have been considered by the
Supreme Court of Appeal in the Cooper-matter.3 It held that it is for the
Master to form the opinion as to whether the proposed witness may be
able to give information regarding the company and that such information
has to be ‘material’. It also endorsed the threshold test formulated in Ex
parte Brivik4 as follows:
“The Court orders the inquiry at its own discretion on information brought before it
by any interested person. Normally it is the liquidator who would apply, but if the
liquidator fails to apply there is no objection to entert aining an application by a
creditor or contributory who has given notice to the liquidator to enable him to put
his views before the Court. The Court is careful to see that the inquisitorial
powers of the section are not used for purposes of vexation or op pression …, but
an applicant is not required to make out a prima facie case that there has been
misfeasance or actionable conduct of any kind. It is sufficient if the Court is
satisfied that there is fair ground for suspicion…, and that the person proposed to
be examined can probably give information about what is suspected.”
[15] It is trite that the process of interrogation under the Companies Act is not
only available to liquidators, but is also available to creditors. 5 This is so
even if the creditor is hostile to the witness.6
[16] The powers of the Master are , however, limited and may not be used for
purposes of a fishing expedition. Before exercising its powers, the Master
must consider whether there is a valid complaint based on a reasonable
suspicion.7 The Supreme Court of Appeal has highlighted 8 the
suspicion.7 The Supreme Court of Appeal has highlighted 8 the
3 Supra at para [11] and [13].
4 1950 (3) SA 790 (W) at 791E-H.
5 Standard Bank of South Africa v Master of the High Court and Others 1998 (3) SA 108
(SCA).
6 Kebble v Gainsford NO and Others 2010 (1) SA 561 (GSJ).
7 Woodlands Dairy (Pty) Ltd and Another v Competition Commission [2011] 3 All SA 192
(SCA) at para [20].
infringement of rights of liberty and privacy through the issuing of these
subpoenae:
[8] … as Berman J pointed out in Foot v The Master.
"Now to oblige a person, not an officer or director of a company in the
course of being wound -up, to appear at a public enquiry held to enquire into the
business and affairs of that company is a serious mat ter, not one lightly resorted
to. It is an obligation, the performance of which is demanded under threat of
imprisonment if not carried out, it is an invasion of an individual's privacy which is
countenanced only under specific conditions and specific circ umstances. It
requires a person to 'bare his soul' in public, and a person who is authorised to
require the attendance of such a person for the purposes of interrogation must of
necessity invoke this authority and exercise this power circumspectly, after d ue
and proper consideration as to the need for such interrogation, the aim, ambit and
purpose thereof and to ensure that the person concerned is not called for the
examination on matters extraneous to the enquiry. That person, in this case the
master, in considering whether to require the attendance of a particular person at
an enquiry in terms of s 415 of the Act, must apply his mind to what may lawfully
and relevantly be required of a proposed "interrogee" by way of oral evidence and
delivery of books and records and other documentation. He (the master) is not
the tool or agent of the liquidator, obliged to carry out the latter's instructions; the
master may take advice and may consult the liquidator, but calling for the
attendance of a person at an enquir y under s 415 of the Act, he is his own man,
performing a duty and exercising a right imposed and granted him by statute and
he is required to bring an independent mind on the need for an enquiry and for an
interrogation to be conducted thereat and as to t he manner in which this is to be
carried out."
[17] This aspect was also considered by the Constitutional Court, 9 which held
carried out."
[17] This aspect was also considered by the Constitutional Court, 9 which held
that the inquisitorial and potentially oppressive nature of insolvency
enquiries are justified only when used within their statutory purpose
(investigating the company’s affairs for the creditors’ benefit).
[18] A witness who may be a potential witness in future litigation against the
company cannot refuse to produce documents that are relevant to the
enquiry.10 The purpose of the enquiry is to reconstruct the company’s
8 In Mantis Investment Holdings (Pty) Ltd v Eastern Cape Development Corporation &
Others 2018 (4) SA 439 (SCA).
9 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1)
SA 984 (CC).
10 Roering and Another NNO v Mahlangu and Others [2016] 3 All SA 466 (SCA). See also
Gumede v Subel NO 2006 (3) SA 498 (SCA) in which it was held that a subpoena may not be set
aside if the documents sought are relevant to the company’s affairs.
financial affairs and thus the scope of permissible questioning and
document production extends beyond the company’s own officers. 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 li tigants to
command such assistance.11
[19] When the Court, however, finds that an attempt has been 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. What does c onstitute 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 a buse of process takes place
where the procedures permitted by legislation to facilitate the pursuit of the
truth are used for a purpose extraneous to that objective. 12 As held in the
Beinash-case:
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.
[20] The issues of relevance and abuse are closely intertwined, but not the
11 Meyers v Marcus and Another [2004] 2 All SA 438 (C); 2004 (5) SA 315 (C) at [30].
11 Meyers v Marcus and Another [2004] 2 All SA 438 (C); 2004 (5) SA 315 (C) at [30].
12 Beinash v Wixley 1997 (3) SA 721 (SCA) at 734G – 735A.
same:13
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 pro cess, 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.
THE STARTING POINT: THE APPLICATION OF THE THRESHOLD
TEST
[21] The Court must be satisfied that there is fair ground for the suspicion that
the person proposed to be examined can probably give information about
what is suspected. Put differently, the Court must consider whether there is
a valid complaint based on a reasonable suspicion, and whether the
proposed witness may be able to give material information regarding the
company in liquidation.
[22] According to Van der Spuy she is justified in seeking disclosure of the
documents as listed in the subpoenae as she has already uncovered
material irregularities, including unexplained payments to insiders, the
diversion of the net proceeds from the sale of a company property, the
post-liquidation transfer of the remaining balance in the company’s bank
account to its director, the director’s failure to keep company records and
the existence of related -party transactions. Broadly summarised, the
essence of her complaint is three-fold:
essence of her complaint is three-fold:
13 Meyers-case at para [35].
[22.1] Firstly, Van der Spuy highlighted the close relationship between
Mrs Lategan, Lategan, LMG and Lategan Trading. She suspects
that LMG is but an extension of, or front for, Lategan.
[22.2] Secondly, it appeared from questions posed to her by the Court
that Van der Spuy’s suspicions centre around the last project
undertaken between LMG and Lategan Trading. This concerned
an agreement entered into between LMG and Four Zuider Paarl
Investments (Pty) Ltd concerning the building of four residences.
She believes that monies due to Lategan Trading were retained by
or diverted to LMG.
[22.3] Thirdly, she suspects that monies had been paid out of the
Lategan Trading accounts to third party accounts (not identified)
without just cause (what she describes as a ‘ne xus’) and that the
money should be repaid to Lategan Trading as it is an asset
belonging to it.
[23] With regards to the first complaint, Van der Spuy has not set out any
grounds in any of her answering affidavits as to why the incorporation of
LMG, the use of th is company, and/or any act by or on behalf of th is
company, constitutes an unconscionable abuse of the juristic personality of
this company as a separate entity in terms of section 20(9) of the 2008
Companies Act.14
[24] In Ex parte Gore NO and Others NNO (in their capacities as the
liquidators of 41 companies comprising King Financial Holdings Ltd
14 Section 20(9) of the Act gives the courts a general statutory discretion to pierce the corporate
veil.
(in liquidation) and its subsidiaries) 15 this Court handed down a
judgment on section 20(9). The issue in Gore was whether the court
should pierce the corporate veil in a group of companies. The applicants
were the liquidators of 41 companies that had formed part of a group of
companies, referred to as ‘the King Group’. The affairs of the King Group
had been conducted in a manner that did not maintain any distinguishable
corporate identity between the various companies in the group. By way of
example, invested funds were ‘allocated’ by the management of the King
Group into whichever company it saw fit, without any meticulously kept
accounting record. Funds solicited from investors were transferred at will
by the controllers of the holding company between the various companies
in the group, with no regard to the individual identity of the companies
concerned. The court found that the disregard by the King brothers of the
separate corporate personalities of the companies in the King Group was
so extensive as to impel the conclusion that the gr oup was in fact a ‘sham’
(at para 15).
[25] It is evident from this case that t he closeness of the relationship between
LMG and Lategan Trading or LMG and/or Lategan and/or Mrs Lategan is
not, in and of itself , sufficient to show an unconscionable abuse of the
juristic personality of th is company (LMG). Lategan’s employment at LMG,
with or without pay, similarly cannot lead to the reasonable suspicion that
LMG is Lategan’s new venture , that his wife is acting as his front and that
LMG is ‘a sham’.
[26] As to the second complaint, according to Mrs Lategan the project was the
15 [2013] 2 All SA 437 (WCC).
third and last one arising from a joint venture between the two companies
where LMG appointed Lategan Trading as subcontractor. Van der Spuy
(relying on a conversation with an undisclosed person who had apparently
had some participation in this project) avers that the building project was
materially completed by the time Lategan Trading was placed in liquidation
and that the costs of the project had been paid. Her su bmission was that
Lategan completed the project under the auspices of LMG and that the
final payment made by Four Zuider Paarl Investments (approximately R2,7
million) and any retention monies paid thereafter, should have been paid to
Lategan Trading. Her suspicion is strengthened as, she says, the R2,7
million was paid from LMG to Mrs Lategan. This against the backdrop of
payments exceeding R15 million that had been paid by LMG to Lategan
Trading in the fourteen months prior to the liquidation.
[27] Although much of this information was provided from the bar, the following
can be verified from the documents placed before me:
[27.1] LMG had entered into an agreement with Four Zuider Paarl
Investments to erect four houses on four different erven.
[27.2] LMG had appointed Lategan Trading to do the actual construction.
[27.3] Lategan signed the building agreement with Four Zuider Paarl
Investments as duly authorised representative of LMG.
[28] What is relevant in the present context, to my mind, is the relationship
between LMG and Lategan Trading. It seems to me that there is a
sufficient basis for a reasonable suspicion that LMG may be able to give
material information regarding the agreement involving Four Zuider Paarl
Investments, LMG and Lategan Trading . Any information relating to this
transaction would most certainly be relevant to the investigation of the
affairs of Lategan Tradin g. Mrs Lategan, as a director of LMG, would be
able to answer questions and provide information regarding this
transaction. This does not mean, however, that the third respondent, and
the fourth respondent acting as its authorised agent, are entitled to al l the
documents sought in the subpoenae duces tecum. The third respondent,
and by extension the fourth respondent, must exercise th eir power
circumspectly, after due and proper consideration as to the need for such
interrogation, the aim, ambit and purpose thereof and to ensure that the
person concerned is not called for the examination on matters extraneous
to the enquiry.
[29] As regar ds the third complaint, and the suspicious transactions on the
bank statements of Lategan Trading, referenced “Absa Bond” or “From
Loan Acc”, once again there is no evidence, other than a suspicion which
Van der Spuy holds, that the money was diverted to L ategan, Mrs Lategan
or LMG. T here are remedies available to the liquidators in terms of the
provisions of the Insolvency Act, such as section 26 (dispositions without
value), section 29 (voidable preferences), section 30 (undue preference to
creditors) and section 31 (collusive dealings) to recover such funds.
Whether there is a basis to do so, can be established in the enquiry, even
with a dearth of documents, without extracting the documents sought by
Van der Spuy from third parties. Van der Spuy has not recorded in her
answering affidavits how the evidence at the enquiry regarding these
transactions can be linked to the documents sought to be discovered
through the subpoenae from Mrs Lategan, the four trusts, LMG, CAP and
Lategan.
THE THREE SUBPOENAE
[30] I now turn to the three subpoenae and the documents / information sought
therein.
The subpoena addressed to the first applicant
[31] The subpoena covers wide ground , ranging from her personal bank
statement for the period 1 February 2023 to 2 December 2 025 (Lategan
Trading was liquidated during October 2023), to her personal tax returns
and assessments for the tax years of 2023, 2024 and 2025, as well as
documents relating to four trusts (three of which were registered in 2024
with one being registered in 2022) and LMG. It appears from the subpoena
that Mrs Lategan was asked to produce documents in her personal
capacity, as well as in (presumably) her capacity as a trustee of the four
named trusts (although she was not identified as a trustee) and in her
capacity as a director of LMG (although she was not addressed in this
capacity). The subpoena did not clearly indicate the different capacities,
such as, but not limited to, Mrs Lategan’s name, occupation, and role in
respect of the parties mentioned in the subpoena , to ensure that she
understands her obligations in each capacity.
[32] Mrs Lategan is being required to produce her personal bank account
statements, her personal tax returns and her personal tax assess ments.
The documents sought can be of no relevance to the singular complaint –
regarding the agreement involving Four Zuider Paarl Investments, LMG
and Lategan Trading – in respect of which I am persuaded that there is a
fair ground for suspicion that LMG may lawfully and relevantly be required
to provide information relevant to investigating the affairs of the company
in liquidation.
[33] She is furthermore, required to produce documents relating to four trusts
(three of whom were registered after the da te of liquidation), including
documents that may not exist, such as an affidavit by the trust’s accounting
firm confirming that no financial statements were ever prepared for the
trusts. No letters of authority were provided and it is not clear from the
papers that she is even a trustee of one or more of the trusts. Once again,
the documents sought (trust deed, list of assets, financial statements, tax
returns and tax assessments) can be of no relevance to the single valid
complaint. I rrelevant matter are d ocuments, which do not apply to the
matter in hand or which do not contribute one way or another to a decision
of such matter.
[34] Once again I have grave difficulty in understanding what the possible
relevance could be – to the single valid complaint – of the documents
sought in respect of LGM. The subpoena calls for inter alia CIPC beneficial
ownership certificates, sale of share agreements with four personae, a
copy of Mrs Lategan’s curriculum vitae, director remuneration agreements,
LMG’s bank account statements from 19 January 2024 to 28 February
2025, VAT returns for three years, trial balances, general ledgers, financial
statements, tax returns, and tax asses sments. The period largely spans
three tax years (2023, 2024 and 2025). In addition it seeks delivery of non-
existent documents, such as “an explanation why you were made director,”
“details of your contribution to the group as director ,” “proof to whom th e
following payments were made ,” and “explain and provide proof .” The few
documents that may be relevant (loan accounts between the two
companies, and an income account relating to the project) disappear in the
copious demand for irrelevant documents.
The subpoena addressed to the seventh respondent
[35] Lategan was also requested to provide his personal bank account
statements, information in respect of one trust (registered in 2022), proof to
whom certain payments were made from the Lategan Trading accou nt,
explanations about transaction relating to Lategan Trading, and a plethora
of documents relating to LMG (resolutions, loan agreements, employment
contracts, and loan schedules ). The latter documents-request was not
limited to any time period. In additi on, the subpoena is silent on the
different capacities, such as, but not limited to, Lategan’s name,
occupation, and role in respect of the parties mentioned in the subpoena ,
to ensure that he understands his obligations in each capacity . Lategan is
not a director of LMG or an employee. It was not alleged that he is a
trustee of the trust. In addition , the subpoena seeks delivery of non -
existent documents – asking for ‘proof’ and ‘explanations .’ The possible
relevance – to the single valid complaint – of the documents sought in
respect of Lategan personally, the trust and LGM escapes me.
The subpoena addressed to the sixth respondent
[36] In this subpoena CAP was requested to provide the loan schedule account
between Lategan Trading and LMG from January 2022 to date, the LMG
VAT returns from 1 November 22 to 28 February 2025, LMG trial balances
for the 2023, 2024 and 2025 tax years, and LMG general ledger accounts
for the same tax year in respect of loa n accounts with Lategan Trading,
Lategan or Mrs Lategan, or “ any other person or legal entity associated
with Tiaan Lategan or Anel Lategan or any of their family members or
other connected people/entities or in any other way held on their behalf. ”
The list continues: SARS VAT and tax accounts, financial statements, tax
returns, tax assessments, trial balances, and “ (general ledger) accounts
showing any payments made or amount accrued to, for or on behalf of
Tiaan Lategan and Anel Lategan, including salarie s, other remuneration,
loans, and all and any other payments/accruals.”
[37] Once again the documents sought are widely framed, spanning three tax
years, and are largely irrelevant to the one valid complaint.
Conclusion
[38] I have noted above that Mrs Lategan, Lategan, and possibly CAP, may
have additional documents in their possession that may be of some
assistance in the enquiry investigation the affairs of Lategan Trading.
These documents would relate to the third joint ve nture project between
LMG and Lategan Trading involving Four Zuider Paarl Investments. The
CAP report contains CAP’s factual findings relating to all transactions
between Lategan Trading and LMG, from the latter’s incorporation until the
date of liquidatio n of Lategan Trading, as captured from the bank
statements of these entities. I should also record that documents reflecting
the commercial dealings between Lategan Trading and LMG have already
been handed to the liquidators (and were received by Van der S puy).
These documents include:
• LMG’s share register
• LMG organogram
• Building contracts in respect of all three projects
• LMG bank statements from 19 April 2022 to 19 January 2024
[39] Although it appears on the face of it as if some of the documents sought in
the subpoenae relate to the Four Zuider Paarl Investments project, I have
compared the documents sought in the subpoenae against the single valid
complaint I have accepted and determined that the bulk of the documents
sought are not relevant to this com plaint. It is evident from the Meyers-
case16 that, even if some of the documents sought are relevant, the
subpoenae may nevertheless be set aside if the court, in the exercise of its
discretion, is satisfied that it amounts to an abuse of the process.
ARE THE SUBPOENAE AN ABUSE OF PROCESS?
[40] It seems from the answering affidavits, and the submissions made by Van
der Spuy during the hearing, that she is suspicious of the closeness of the
relationship between Lategan, Mrs Lategan, Lategan Trading and LMG.
She considers LMG to be the front for Lategan. It is clear that most (if not
all) of the documents sought arises from this belief. In an effort to prove or
disprove this suspicion, she has embarked on a fishing expedition, casting
her net wide. I say this for the following reasons:
[40.1] The first is the generality and wide ambit of some of the demands
contained in the subpoena. The language used , as quoted above,
is of the widest possible amplitude including within its sweep every
16 Supra at para [50] and [51].
conceivable document of whatever kind, however remote or
tenuous its connection may be to the investigation of the affairs of
the company in liquidation.
[40.2] The period for the docum ents required also span a significant
period – usually three tax years – and encompasses periods of
time both before the commencement of the third project and after
the completion of the same project.
[40.3] Not the slightest basis is suggested in her answ ering affidavits to
support the belief that any of these documents exist at all or that, if
they do, they can be of any assistance in the determination of a
relevant issue in the insolvency enquiry.
[40.4] It is evident from the wording employed in the su bpoenae that
there is an expectation that documents should be created
specifically for the purposes of the enquiry.
[40.5] The wording in the subpoenae, particularly in respect of Mrs
Lategan and Lategan, furthermore suggests that oral evidence
must be led in that ‘explanations’ must be provided or ‘proof’ must
be produced. No document is sought in respect of the evidence
sought – the draftsperson of annexure A to the subpoenae simply
ignore the requirement that the subpoenae documents must
‘specify’ the do cument or thing , which the witness concerned is
required to produce.
[40.6] The subpoenae to Mrs Lategan and Lategan also seeks the
production of documents in an indiscriminate fashion with no
attention being paid by the draftsperson of Annexure A to each
subpoena regarding the capacity in which these documents are
sought.
[41] I am not persuaded that the attempted enforcement of the impugned
subpoenae by Van der Spuy constituted a bona fide exercise of the rights
of the Mas ter, through the fourth respondent, to call upon the first and
second applicants, as well as the sixth and seventh respondents, to
produce relevant documents. In my view these subpoenae constitute an
abuse of the machinery provided by the Insolvency Act to assist the Master
in obtaining properly specified documentation relevant to investigating the
company’s affairs. The impugned subpoena e have the effect of harassing
the first and second applicants as well as the sixth and seventh
respondent.
[42] I must thus conclude that, although there may be a few documents
relevant to the one valid complaint, the subpoenae constitute an abuse of
the process and must be set aside.
Costs
[43] The ordinarily rule is that the successful party is entitled to its costs. Mr De
Vries h as urged me to find that the subpoenae were neither issued nor
intended to be used for any legitimate purpose contemplated by the
Insolvency Act and that the issuing and enforcement of the subpoenae
were pursued for an ulterior purpose and with mala fide intent. As such the
applicants are seeking a punitive cost order. I am unable to do so. Van der
Spuy is a qualified chartered accountant who, by training and vocation is
experienced in the forensic analysis of financial documents. As she
explained, to the lay person her enquiries could subjectively be
experienced as invasive or harassing of nature, but, in order to perform her
due diligence, she has to follow a train in order either to prove or to
disprove what she believes the position to be.
[44] She is a creditor, and her request for the production of documents should
have been closely scrutinised by the first to fourth respo ndents. It is after
all, the person who is authorised to require the attendance of another (the
third party) for the purposes of in terrogation who is invoking this authority
and who must exercise this power circumspectly, after due and proper
consideration as to the need for such interrogation, the aim, ambit and
purpose thereof to ensure that the third party is not called for the
examination on matters extraneous to the enquiry.
[45] It is clear to me that the first to fourth respondents did not (properly)
consider whether there is a valid complaint based on a reasonab le
suspicion. The inquisitorial and potentially oppressive nature of insolvency
enquiries are justified only when used within their statutory purpose
(investigating the company’s affairs for the creditors’ benefit).
[46] In the alternative, Mr De Vries sought an order compelling the first, second
and fifth respon dents t o pay the applicants’ costs on a party and party
scale with Scale C a pplying to counsel’s fees, the one paying, the other
being absolved pro tanto . I am prepared to grant this order. The first,
second and fifth respondents were afforded an opportunity on 21 January
2026, before the application was launched, to withdraw the subpoenae
and warned about the cost implications of not doing so. They did no t avail
themselves of this opportunity.
[47] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicant: Adv J D de Vries
Instructed by BDP Attorneys Inc
For the fifth respondent: In person