IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 20346/2024
In the matter between:
SUSANNA MARIA JANSEN Applicant
and
GARTH JOHN GREEFF First respondent
SUSANNA MARIA STATIONERS CC Second respondent
ABSA BANK LTD Third respondent
Coram: Van Zyl, J
Heard on: 2 June 2026
Judgment: : 9 June 2026
Summary: Subpoena duces tecum – applicant seeking to interdict witness from
complying with subpoena by way of an interim interdict, pending application for
setting aside thereof – first respondent arguing that relief sought incompetent –
precedent upon which first respondent relies involves the powers of a magistrates’
court – such precedent does not render interdictory relief sought by the applicant
incompetent
___________________________________________________________________
ORDER
1. The applicant’s non -compliance with the forms, service and time periods
prescribed by the Uniform Rules of Court is condoned, and this matter is
dealt with as one of urgency under Rule 6(12).
2. Pending the final determination of Part B of this application, the third
respondent is interdicted and restrained from producing, disclosing,
releasing, or furnishing any documents, banking records, statements, or
other financial information, pursuant to the subpoena duces tecum
directed at the third respondent and issued at the instance of the first
respondent under case number 20346/2024.
3. Paragraph 2 above shall operate as an interim interdict pending the final
determination of Part B of this application.
4. The applicant is given leave to deliver a supplementary affidavit in relation
to Part B within 10 (ten) days of the grant of this order, and the parties
shall from the expiry of the 10 -day period deliver answering and replying
affidavits as stipulated in Rule 6.
5. Part B of this application is postponed to Wednesday, 7 October 2026 for
hearing on the semi-urgent roll.
6. The first respondent shall pay the costs of Part A of this application,
including counsel’s fees taxed on Scale B.
JUDGMENT
VAN ZYL, J:
Introduction
1. This matter concerns a subpoena duces tecum that was, on the applicant’s
case, issued contrary to the terms of an existing court order . The order was
granted in settlement of various issues that were, as appears from a bulky
court file, part of a heavily -fought membership dispute regarding the second
respondent.
2. The subpoena was issued on 29 April 2026 and served on the bank on 11
May 2026. It requires the production of extensive banking records and
financial information relating to the second respondent, for a period stretching
over 15 years, from January 2005 to January 2020.
3. What was before me on the urgent roll was Part A of a two-part application. In
Part A, the applicant seeks an order that, pending the finalisation of Part B of
the application, the third respondent (the bank) be interdicted from producing,
disclosing, releasing , or furnishing any documents, banking records,
statements, or other financial information pursuant to the subpoena , which
was directed at the bank and issued at the instance of the first respondent.
4. Part B is an opposed application for the setting aside of the subpoena, with
ancillary relief, to be dealt with on the semi-urgent roll in due course.
5. Only the first respondent opposes the urgent relief sought. He does so on a
point of law under Rule 6(5) (d)(iii), namely that there is precedent in this
Court to the effect that the applicant has sought incompetent relief in the form
of an interdict. The applicant was, instead, to have brought an application to
stay the subpoena, or to have it set aside on an urgent basis , or a
combination of these remedies.
6. The applicant’s answer to this is that she is effectively seeking an interim stay
of the subpoena , although the stay is sought by way of an interim interdict .1
More pertinently, even if the relief in Part A is an interim interdict (and not an
1 See, for example, the interim interdict that was made final in Muthray & Associates
1 See, for example, the interim interdict that was made final in Muthray & Associates
Incorporated and another v ABSA Bank Ltd and others 2024 JDR 4213 (GP) para 2.
interim stay), the applicant seeks such relief on an urgent basis as interim
relief pending a full hearing of Part B of the application in which the applicant
explicitly seeks the setting aside of the subpoena.
The first respondent’s reliance on Greeff v Cooper and others2
7. The first respondent contends that the applicant is seeking incompetent relief.
The interdict sought amounts, in substance and in effect, to an order
interdicting compliance with lawful court process in circumstances where the
applicant fails to seek a stay of the lawful court process.
8. The first respondent relies squarely on the judgment of Davis AJ (as she then
was) in Greeff v Cooper and others,3 in particular upon the following extract:
“[35] I consider that the framing of the relief as an interdict was ill -conceived. Firstly,
the notion of interdicting compliance with lawful process is counter -intuitive. A
subpoena is lawful process which, absent lawful excuse, must be obeyed unless and
until set aside by a competent court. If relief is required because the subpoena
exceeds the bounds of lawful process, a competent court must decide whether or
not the subpoena is an abuse. If it is, it must be declared as such and set aside.
[36] Secondly, asking for an interdict to prevent compliance with a subpoena
because it is an abuse of process is rather like trying to sneak in through the back
door because you are not allowed to enter through the front door. It seems to me
that if a [court] does not have jurisdiction to set aside a subpoena on the grounds of
abuse, it cannot have jurisdiction to interdict compliance with a subpoena on the
grounds that it is an abuse, which amounts to the same thing…”4
9. The first respondent argues that the ratio of the Greeff judgment applies with
equal force in the present matter. An interdict directed at preventing
compliance with a subpoena on the ground that the subpoena is an abuse of
process, or otherwise invalid, is not competent. The proper remedy is to set
process, or otherwise invalid, is not competent. The proper remedy is to set
2 2019 (3) SA 203 (WCC), a decision on appeal from the magistrates’ court.
3 Greeff supra paras 35-36.
4 My emphasis.
aside the subpoena or at least stay the subpoena pending the setting aside
thereof, not to interdict compliance with it pending that determination.
10. The first respondent’s counsel refers, in addition, section 36(5)(c) of the
Superior Courts Act 10 of 2013, which provides that , “[w]hen a subpoena is
issued to … produce any book, paper or document in any proceedings, and it
appears that - … to compel him or her to attend would be an abuse of the
process of the court, any judge of the court concerned may, notwithstanding
anything contained in this section, after reasonable notice by the Registrar to
the party who sued out the subpoena and after hearing that party in
chambers if he or she appears, make an order cancelling such subpoena”.
11. The first respondent argues that this section entitles the bank (not the
applicant) to seek the cancellation of the subpoena, and that it reinforces his
submission that the applicant is not entitled to the relief that she seeks.
12. The applicant submits that the first respondent’s reliance on Greeff v Cooper
is misplaced. The judgment did not establish a general prohibition against
interim interdictory relief restraining disclosure under a subpoena . The issue
in Greeff was materially narrower, namely whether a magistrates’ court,
which lacks jurisdiction to set aside a subpoena, 5 could nevertheless interdict
compliance with that subpoena on the basis that it constituted an abuse of
process. The Court held that it could not:6
“[27] Unlike the High Court, a Magistrates’ Court has no inherent jurisdiction to set
aside a subpoena on the grounds that it is vexatious or amounts to an abuse of the
process of the court . Therefore where a person wishes to challenge a subpoena
issued out of the Magistrates’ Court on the grounds that it amounts to an abuse of
process, it is incumbent on him or her to apply to the High Court for an order setting
aside the subpoena as an abuse.
aside the subpoena as an abuse.
[28] However Cooper did not do so. Instead he approached the Magistrates’ Court
for relief which, although couched as an interdict, was predicated on the basis that
5 See Greeff supra para 26.
6 Greeff supra paras 27-31. My emphasis.
the subpoena was an abuse. Indeed the notice of motion included an alternative
prayer for the setting aside of the subpoena on that basis.
[29] It bears emphasis that Cooper Senior did not base his case on the fact that
ABSA was under a misapprehension regarding what was required of it under Rule
26(3) of the rules, and that it was only obliged (and therefore only entitled) to
produce the documents to the court on the day of the hearing. He did not seek a
temporary interdict restraining ABSA from delivering the documents to the clerk of
the court prior to the hearing with a view to his appearing at court and objecting to
their production on the day of the hearing.
[30] Such narrow interim relief would have been unexceptionable. By virtue of his
contractual relationship with ABSA as its customer, he would have been entitled to
prevent ABSA from disclosing his confidential information otherwise than strictly in
accordance with the behests of Rule 26(3). Thus he could have interdicted ABSA
from delivering his documents to the Clerk of the Court instead of producing them to
the court at the hearing, based on the wording of Rule 26(3).
[31] But instead he relied on an alleged abuse of process and breach of his right to
privacy, as one would in an application to set aside a subpoena. The case made out
in the founding affidavit makes it clear that although the relief was couched as an
interdict, the application was, in substance and effect, an application to set aside the
subpoena – relief which a Magistrates’ Court cannot grant.”
13. I agree with the applicant’s submissions. Context is everything. In Greeff,
the question to be decided specifically entailed the “ correct procedure to
challenge a subpoena duces tecum issued out of the magistrates’ court ”, and
thus “ whether it is legally competent to interdict compliance with a
magistrates’ court subpoena duces tecum on the basis that it is an abuse ,
instead of applying to set aside the subpoena”.7
instead of applying to set aside the subpoena”.7
14. The underlined sentence in paragraph 36 of the judgment, quoted earlier,
makes the Court’s perspective crystal clear.
15. As is apparent from the quoted extract, Davis AJ held that “ unlike the High
Court, a Magistrates’ Court has no inherent jurisdiction to set aside a
subpoena on the grounds that it is vexatious or amounts to an abuse of the
7 Greeff supra para 1.
process of the court ”. Where a person wishes to challenge a magistrates’
court subpoena on the basis that it constitutes an abuse of process, “ it is
incumbent on him or her to apply to the High Court for an order setting aside
the subpoena as an abuse”.8
16. The present application does precisely what Greeff says must be done when
a subpoena is challenged as an abuse of process. The Court in Greeff
expressly distinguished between the defective relief sought and the narrow
interim relief that had in fact been required, which was the prevention of
premature disclosure of confidential banking information. It held that Mr
Cooper could have sought “… a temporary interdict restraining ABSA from
delivering the documents to the clerk of the court prior to the hearing ”, and
that “[s]uch narrow interim relief would have been unexceptionable”.9
17. The applicant does not seek to obtain final relief in the form of the setting
aside of the subpoena under the guise of an interdict in a court that lacks
jurisdiction to do so. She seeks relief in this Court, which does have the
necessary jurisdiction to grant the relief sough t. Such relief is, moreover,
sought pending a full hearing as to whether the subpoena should be set
aside. That distinction is decisive. In Greeff, Mr Cooper “ did not do so ”.
Instead, he approached the magistrates’ court for relief “ couched as an
interdict” but “predicated on the basis that the subpoena was an abuse ”, with
an alternative prayer setting aside the subpoena. The defect was therefore
not the seeking of interim relief per se, but rather that the relief was sought in
the wrong forum and was, in substance, a setting aside application which the
magistrates’ court could not grant.
18. The interim relief sought by the applicant does not finally determine the
validity of the subpoena , but prevents disclosure pending a full hearing and
determination as to whether it should be set aside. I t is not disputed that,
determination as to whether it should be set aside. I t is not disputed that,
once the banking information is disclosed under the subpoena , as the bank
8 At para 27.
9 At para 30.
would have to do under Rule 38 ,10 confidentiality is permanently lost, and the
final relief would be rendered moot.
19. The first respondent’s reliance on the passages from Greeff stating that “ the
notion of interdicting compliance with lawful process is counter -intuitive”, and
that the proper remedy is to set aside the subpoena is therefore misplaced.
Those passages were directed at a litigant who sought to interdict compliance
with a magistrates’ court subpoena in the magistrates’ court, on the basis of
abuse of process despite such court having no jurisdiction to determine the
abuse complaint and grant the relief sought. Davis AJ’s reasoning , that a
subpoena “must be obeyed unless and until set aside by a competent court ”,
and that if the subpoena exceeds lawful process “ a competent court must
decide whether or not the subpoena is an abuse ”, must be understood within
this context.
The order granted by agreement on 10 February 2025
20. There is, in any event, a twist in the tale. A further distinction between the
present case and that of Greeff is that the applicant’s case in Part B for the
setting aside of the subpoena does not rest solely upon an alleged abuse of
process. The applicant relies, additionally, upon the express terms of a n
order that was taken by agreement between the applicant and the first
respondent on 10 February 2025.
21. Paragraph 13 of the order reads as follows: “ From the date that the First
Respondent is released from any liability in terms of any suretyship that he
signed, he would have no right to any financial information and/or
documentation relating to the Second Respondent’s business”.
22. It is not disputed that the first respondent has been released from all liability
as surety for the second respondent’s debts. The applicant thus contends
10 See Greeff supra para 18, and Uniform Rule 38(1)(b)(iv): “Within five days of lodgement with
the registrar, the party causing the subpoena to be issued for the production of the document
shall inform all other parties that the said document is available for inspection and copying
and of any conditions set by the registrar for inspection and copying.”
that the order prohibits the disclosure of the financial information sought by
the first respondent by way of the subpoena.
23. The order further makes provision for the valuation of the members’ interest
in the second respondent. In paragraph 3 of the order the appointment of a
chartered accountant is envisaged to undertake the valuation. Paragraph 5
of the order directs the parties to provide the chartered accountant with the
information required for purposes of the valuation, “ failing which the person
referred to in prayer 3 above [that is, the accountant] is authorised to make
application to this Honourable Court for such furt her direction and relief as
might be appropriate”.
24. The applicant accordingly contends that the first respondent, by way of the
subpoena, seeks to interfere in the valuation process agreed to in the order .
His actions are in conflict with the terms of the order, to which he is bound .
This is another reason why the bank’s compliance with the subpoena should
effectively be stayed via the interdict sought.
25. The first respondent, having relied only upon a point of law, does not dispute
the facts set out in the applicant’s founding affidavit.
26. When initially considering the papers it struck me that the subpoena had
been issued in a vacuum, given the settlement between the parties embodied
in the agreed order. In other words, the underlying reason for the issue of the
subpoena was not clear, as there was, as far as I could see, no underlying lis
between the parties that could give rise to the subpoena.
27. In answer to a question in this regard, counsel for the first respondent relied
upon a paragraph in the applicant’s founding affidavit which refers to a
pending application for contempt of court, brought by the first respondent
against the applicant on an urgent basis in December 2025. The applicant
states that the application has seemingly been abandoned, as it has not been
states that the application has seemingly been abandoned, as it has not been
set down for hearing. Full sets of affidavits, as well as two supplementary
affidavits by the first respondent, have in any event been delivered.
28. In correspondence prior to the institution of the application, the first
respondent indicated that the financial information was sought because, as a
member of the second respondent, he still owed fiduciary duties to it and thus
required insight into such information.
29. Neither the desolate contempt application nor the invocation of fiduciary
duties assists the first respondent. The first respondent’s rights and duties in
relation to the second respondent are regulated inter alia by the court order.
Even if the first respondent genuinely believes that he continues to owe
fiduciary obligation s to the second respondent by virtue of his residual
membership status, the mere issue of a subpoena is not a competent
mechanism through which a member of a close corporation may obtain
general access to corporate financial information, monitor corporation affairs,
or exercise oversight functions. The subpoena was not therefore issued
within the context of active proceedings or disputes requiring judicial
determination. To use the applicant’s words, it “ lacks the necessary forensic
nexus to pending litigation ordinarily required for the legitimate invocation of
subpoena procedures”.
30. This notwithstanding, I accept that the subpoena may be valid from a purely
procedural or technical perspective, meaning that it has been lawfully issued
and is a binding court process which must be complied with until stayed or
set aside.11 This does not, however, assist the first respondent’s case . The
applicant’s complaint is not directed at the form of the subpoena , but at its
effect and the circumstances in which it was issued . It seeks to achieve that
which the agreed court order expressly prohibits. As the applicant puts it, t he
first respondent cannot circumvent a binding court order by invoking
procedural mechanisms. Until such time as the order is varied, rescinded or
set aside (none of which is on the cards) , compliance therewith remains
obligatory.
set aside (none of which is on the cards) , compliance therewith remains
obligatory.
11 Department of Transport and other v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) para 181: “The
general rule is that orders that do not concern constitutional invalidity do have force from the
moment they are issued. And in light of section 165(5) of the Constitution, the order is
binding, irrespective of whether or not it is valid, until set aside.”
The requirements for the grant of an interim interdict
31. It is trite law that the requirements for the grant of an interim interdict are:12
31.1 a prima facie right – this need not be shown on a balance of
probabilities, but is sufficiently proved if prima facie established
though open to some doubt. The stronger the right is, the less need
there is for the balance of convenience to be considered;
31.2 a well -grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually granted –
this is a harm that a reasonable person might entertain on being
faced with certain facts, and is an objective test;
31.3 a balance of convenience favouring the grant of the interim relief –
the Court must weigh the prejudice the applicant will suffer if the
interim interdict is not granted against the prejudice to the first
respondent if it is; and
31.4 the absence of any other satisfactory remedy in the circumstances.
32. The proper approach in determining whether to grant an interim interdict is to
take the facts set out by the applicant, together with any facts set out by the
first respondent which the applicant cannot dispute, and to consider whether,
having regard to the inherent probabilities, the applicant could on those facts
obtain final relief at the trial (or, in the present matter, at Part B of the
application).
A prima facie right
12 See Prest Interlocutory Interdicts (1993) at 54-86.
33. Counsel for the first respondent argues that, at the outset, no prima facie right
exists, because the subpoena has been lawfully issued and the bank is
obliged to obey it . He refers to section 35(4) of the Superior Courts Act,
which provides that a person “ subpoenaed to attend any proceedings as a
witness or to produce any document or thing who fails without reasonable
excuse to obey such subpoena, is guilty of an offence and liable upon
conviction to a fine or to imprisonment for a period not exceeding three
months”.13
34. The answer to this is that a court order would amount to a reasonable excuse
as far as the bank is concerned. Failure to comply with the subpoena
because of an existing interdict would therefore not make the bank guilty of
an offence.
35. On the facts set out earlier in this judgment, I am of the view that the
applicant has established a prima facie right arising from the existing court
order, and from her entitlement to protection against the abuse of this Court’s
processes.
A reasonable apprehension of irreparable harm
36. The subpoena seeks 15 years’ confidential financial information. I accept
that disclosure thereof could result in irreversible prejudice to the operational
integrity and commercial interests of the second respondent, especially in the
circumstances set out in the founding affidavit. There is much animosity
between the applicant and the first respondent, and it appears that court
processes as well as verbal threats and accusations are being used to
intimidate the applicant and the second respondent’s employees. There is no
need to traverse all of the allegations in the founding affidavit, which are not
denied by the first respondent in an answering affidavit.
13 In Minister of Police and others v Premier of the Western Cape and others 2014 (1) SA 1
(CC) para 1 fn 1 a subpoena is described as “a court order commanding the presence of a
witness under a penalty or fine for failure”.
37. The use to which the first respondent seeks the put the information gained via
the subpoena may therefore legitimately be questioned. The bank has
indicated in correspondence that it intends complying with the subpoena
unless it is withdrawn or set aside. The first respondent’s attorneys have
confirmed that the first respondent has no intention of withdrawing the
subpoena.
Balance of convenience
38. The balance of convenience favours the applicant and, though her, the
second respondent. The first respondent has not placed anything before this
Court to indicate that non -compliance with the subpoena (that is, preserving
the status quo) prior to the determination of Part B of the application would
cause him any harm.
No alternative remedy
39. The first respondent argues that the a pplicant has an alternative remedy,
namely to apply to have the subpoena set aside, which she should have done
in the first place. I do not think that the fact that the applicant has at her
disposal, and is facing, an opposed application to set aside the subpoena is
an adequate alternative remedy.
40. The applicant faces the imminent enforcement of a subpoena that is , on her
version (the first respondent not having put up any facts in opposition),
inconsistent with a court order agreed upon between the parties . In those
circumstances, the applicant has no suitable alternative remedy other than to
seek an urgent and interim stay of the subpoena ( or an interim interdict that
will has such effect).
Conclusion and costs
41. The matter was sufficiently urgent to warrant a hearing on the urgent roll.
The subpoena, although issued on 29 April 2026, was only served on the
bank on 14 May 2026. The bank advised the applicant of the subpoena on
18 May 2026 (the first respondent did not alert the applicant).
Correspondence was exchanged between the parties’ attorneys over the
period 20 May 2026 to 26 May 2026, when the bank indicated that it intended
to comply with the terms of the subpoena. The application was issued on 28
May 2026 for hearing on 2 June 2026. The timeline was tight, but it was not
unreasonable in the circumstances.
42. In the specific circumstances of this matter, I think that the applicant has
made out a case for the relief sought.
43. In accordance with the general rule, the first respondent - the only party to
oppose the urgent application - will bear the costs thereof, including the costs
of counsel taxed on Scale B of the applicable tariff.
Order
44. In the premises, it is ordered as follows:
1. The applicant’s non -compliance with the forms, service and time
periods prescribed by the Uniform Rules of Court is condoned, and
this matter is dealt with as one of urgency under Rule 6(12).
2. Pending the final determination of Part B of this application, the third
respondent is interdicted and restrained from producing, disclosing,
releasing, or furnishing any documents, banking records,
statements, or other financial information, pursuant to the subpoena
duces tecum directed at the third respondent and issued at the
instance of the first respondent under case number 20346/2024.
3. Paragraph 2 above shall operate as an interim interdict pending the
final determination of Part B of this application.
4. The applicant is given leave to deliver a supplementary affidavit in
relation to Part B within 10 (ten) days of the grant of this order, and
the parties shall from the expiry of the 10 -day period deliver
answering and replying affidavits as stipulated in Rule 6.
5. Part B of this application is postponed to Wednesday, 7 October
2026 for hearing on the semi-urgent roll.
6. The first respondent shall pay the costs of Part A of this application,
including counsel’s fees taxed on Scale B.
P. S. VAN ZYL
Judge of the High Court
Appearances:
For the applicant: Mr K. Felix
Instructed by: JS Attorneys
For the first respondent: Mr G. Potgieter
Instructed by: Hill Erasmus Attorneys
No appearance for the second and third respondents