REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
JUDGMENT
Reportable
Case Number: 2026-072786
In the matter between:
JOHANNES KRIEL FIRST APPLICANT
SCANDANA VIAN AUTO WORKS (PTY) LTD SECOND APPLICANT
And
ROBERT JOHN SWIERSTRA FIRST RESPONDENT
FIRST NATIONAL BANK SECOND RESPONDENT
THE REGISTRAR OF THE HIGH COURT
WESTERN CAPE DIVISION THIRD RESPONDENT
In re: The main application between:
ROBERT JOHN SWIERSTRA APPLICANT
And
JOHANNES KRIEL FIRST RESPONDENT
SCANDANA VIAN AUTO WORKS (PTY) LTD SECOND RESPONDENT
COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION THIRD RESPONDENT
Neutral citation: Johannes Kriel & 1 Other v Robert John Swierstra & 2 Others (Case No:
2026-072786) [2026] ZAWCHC… ( 11 August 2026)
Coram: MTHIMUNYE AJ
Heard: 7 August 2026
Delivered: Electronically on 11 August 2026
Summary: Procedural irregularity – Incorrect process – Interdictory final relief to set
aside subpoena duces tecum issued by registrar - No application to court to show
exceptional circumstances why subpoena should have been issued - An abuse of process
– Respondent aware that there is a dispute of fact in main case- Documents sought to
prove the existence of an disputed agreement in pending application – Bank statements
by their very nature confidential - Application granted
ORDER
1. Condoning, in terms of Uniform Rule 6(12), the Applicants’ non -compliance with the
forms, service and time -periods prescribed by the Uniform Rules of Court and directing that
the application be heard as one of urgency.
2. That the subpoena duces tecum dated 7 May 2026, issued by the Registrar on 23 June
2026 at the instance of the First Respondent and directed to the Second Respondent, First
National Bank, a division of First Rand Bank Limited, is declared irregular and an abuse of
process of this Court and set aside.
3. That the First Respondent be ordered to pay the costs of this application on an attorney and
client scale.
JUDGMENT
Mthimunye AJ:
Introduction
[1] This is an urgent application brought by the First Applicant , the sole
director of the Second Applicant, Scandanavian Auto Works (Pty) Ltd,
pertaining to a subpoena duces tecum dated 7 May 2026, issued by the Registrar
on 28 June 2026 at the instance of the First Respondent, and directed to the
Second Respondent, First National Bank, a division of First Rand Bank Limited
(“FNB”), for said subpoena to be declared irregular and an abuse of the process
of this court, and to be set aside.
[2] This application is opposed by the First Respondent only, whereas the
Second Respondent is not opposing this matter provided no cost order is sought
against them. For purpose of this judgment I will be referring to the First
Respondent as the respondent.
Background
[3] On 15 April 2026, the respondent’s main application was struck off the
roll for lack of urgency. The Applicant in that application raised a dispute of fact
denying an alleged agreement was ever concluded between the parties.
Subsequently to the matter being struck off the roll the respondent re-enrolled
the matter on the opposed motion roll. No order was made for the issues to be
referred in terms of Rule 6(5)(g) for oral evidence or for trial.
[4] Likewise there has been no order under Rule 35(13) directing that the
discovery mechanism in terms of Rule 35 be complied with in the main
application. The respondent in the interim also filed an application for the
joinder of Braait Investments (Pty) Ltd to the main proceedings, however no
order has yet been granted for the joinder.
[5] It is common cause a fter the motion proceedings had closed in the main
application, the respondent on 7 May 2026 , without leave from th is court,
procured a subpoena from the Registrar , compelling FNB to deliver the
banking records for a period of more than two years of the second applicant,
Scandanavian Auto Bodyworks (Pty) Ltd, to be inspected by the respondent ’s
attorneys. The subpoena seeks copies of all bank statements for over two years
and expressly extends beyond the nominated current account of the applicant to
every credit card, savings, cheque, money -market, current, notice or other
account held in the second applicant’s name.
[6] On 3 August 2026, FNB confirmed with the applicant in writing that
absent a court order by 13 August 2026 , they would have to comply with the
subpoena. It is against this background that the applicant approached this court
on an urgent basis to seek interdictory relief that the subpoena duces tecum be
declared irregular, an abuse of process, and be set aside.
Applicant’s case on urgency
[7] Applicant in his founding papers avers that he first became aware of the
subpoena on 31 July 2026. On that same day his attorney’s requested certain
undertakings from the Respondent’s attorneys’ to either suspend or withdraw
the subpoena. Consequently, to the request his attorney ’s received a response
from FNB legal department informing his attorney’s that they intended to
comply with the subpoena served on them by 13 August, unless the applicant
supply them with a court order setting aside or suspending t he subpoena.
Furthermore, his attorneys were also informed by the respondent’s attorneys
that they are required to proceed with litigation. In support of th ese averments
the applicant attached copies of the respondents’ emails correspondence marked
“FA3” and “FA5”, to his founding papers.
[8] The applicant further avers that upon receiving these emails from the
respondents’ they immediately approached this court for the relief as sought in
their notice of motion . Furthermore, if this matter is not heard urgently there
will be no substan tial redress available to him in due course , as after the 13
August 2026 once bank statements is handed over to the respondents , the
applicants' confidentiality will have already been compromised irreparably.
Furthermore, only a court order can preserve the position.
Respondent’s case on urgency
[9] The respondent on the other hand in their answering papers alleged that
the urgency is overstated and self -created in that the urgency relied upon flows
from the ordinary operation of a lawful court process. Respondent further
submitted that FNB should be allowed to comply with the subpoena in the
interim and that the parties may subsequently argue whether the bank
statements is relevant or necessary to the respondent’s case.
[10] The respondent in his answering papers conceded that the bank
statements are confidential but avers that confidentiality is not absolute. In
addition, that the prejudice to be suffered by him if barred from obtaining
relevant evidence materially outweighs the speculative prejudice alleged by the
applicant. Further that the applicant has failed to establish a clear right for the
relief sought , and that the alleged injury relied upon by the applicant is
speculative and overstated.
[11] The respondent further avers that the applicant does have alternative
remedies available to him by objecting to the admissibility of the documents
during the proceedings. Additionally, that the documents form part of the
dispute to be determined in due course. Furthermore, that the applicant’s
application is not directed at any real right to be protected , but rather at
preventing potentially relevant evidence from becoming available to this court.
Accordingly, the respondent seek this court to find that the applicant has failed
to establish the requirements for either interim or final interdictory relief to be
granted and that application should be dismissed for lack of urgency.
Evaluation on Urgency
[12] Before entertaining the merits of this application before me, I will first
have to satisfy myself that the application before me is indeed urgent and
warrants deviation from the ordinary court roll. The test for urgency is set out in
the locus classicus , Luna Meubels Vervaardigers (Edms) Bpk v Makin &
Another (t/a) Makin’ s Furniture Manufacturers 1977 (4) SA 135, where the
court held;
“Mere lip service to the requirements of Rule 6(12)(b) will not do and an
applicant must make out a case in the founding affidavit to justify the particular
extent of the departure from the norm, which is involved in the time and day for
which the matter be set down. “
[13] In East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd and
Others (2011) JDR 1832 (GSJ), it was held that in determining whether a matter
should be treated urgently an applicant must state why he claims he cannot be
afforded substantial redress in due course if the application is not heard
immediately.
[14] Having considered the affidavits , oral submissions and case law cited, I
am satisfied that the applicant has made out a proper case for urgency . Not only
has he set out explicitly the circumstances which renders his matter urgent , he
also set out the reasons why he cannot obtain substantial redress in due course.
He also set out explicitly in his papers if relief sought is not urgently granted he
will suffer irreparable harm , as not only will t here be a breach of his
confidential financial affairs but also to those of his employers and third parties’
whose financial information are reflected on those bank statements. It is
apparent that t he disclosure of this confidential financial information cannot be
cured at a later stage by substantial redress in due course as once the damage is
done it would be irreversible.
[15] I therefore find that the matter is urgent and condone in terms of R6(12)
the applicant’s non-compliance with the forms, service and timelines presented
by the Uniform Rules of Court , and directs that this application be heard as one
of urgency.
[16] I now turn to deal with the merits of this application in determining
whether the applicant has satisfied this court for final or interim interdictory
relief to be granted.
Clear right
[17] The applicant avers that he has established a clear right to protect the
integrity of the Court’s process and to prevent unlawful disclosure of the Second
Applicant’s confidential banking information. Further that the terms, scope and
purpose of the subpoena are apparent from the subpoena itself as the applicant
allege it is not dependent upon the resolution of any material dispute.
[18] The respondent in defence avers that the applicant has failed to establish a
clear right or even a prima facie right to the relief sought. That the subpoena
was lawfully issued by the Registrar in the ordinary course. The respondent
further denies that the applicant possess a clear right to prevent the production
of the documents sought pursuant to a valid subpoena. Further that the applicant
cannot simply state that the subpoena constitutes an abuse of process and rely
upon that assumption to establish the rights necessary for interdictory relief.
Irreparable harm
[19] The applicants avers that injury is both actual and imminent in that FNB
has stated in unequivocal terms that they will comply with the subpoena by 13
August 2026 unless restrained by a court order. Furthermore, that once the
banking records of the second applicant have been disclosed and inspected, their
confidentiality cannot be restored. Furthermore, the threatened disclosure by
FNB is concrete and imminent.
[20] The respondent in opposition avers that the extent to which the applicant
relies on the confide ntiality of the documents can adequately be addressed by
appropriate directions relating to the use of the documents within the litigation.
In addition, that the mere production of documents pursuant to a lawful
subpoena does not, without more establish irreparable harm.
Alternative remedy
[21] The applicant in their founding papers avers that they have no adequate
alternative remedy, in that FNB cannot disregard a subpoena issued by the
Registrar. In addition, a claim for damages or exclusion of documents at a later
stage as remedy against the respondent’s refusal in withdrawing the subpoena
will not reverse the disclosure. Only an order by this Court can preserve the
position of the confidentiality of the documents.
[22] The respondent rejects this contention by the applicant in that he avers in
his answering papers that the applicant has failed to establish the absence of an
adequate alternative remedy . Furthermore, the applicant remain entitled to
object to the admissibility of the documents during proceedings on the grounds
of the documents being irrelevant , inadmissible or being improperly obtained.
In addition, that the application by the applicant is not directed at protecting any
legitimate legal right but rather at preventing potentially relevant evidence
becoming available to this Court. They further averred that the applicants has
failed to establish the requirements for either final or interim interdictory relief.
Applicant’s submissions
[23] The applicant submitted during argument that the subpoena in question
was submitted irregular ly in pending motion proceedings which is enrolled to
be heard in February 2027 . That pleadings had already closed in the pending
main matter as all affidavits had already been filed. That there is no reason why
the respondent now wants the second applicant’s bank statements other than to
supplement his case where a dispute of fact had been raised by the applicant
pertaining to the existence of an alleged agreement.
[24] Furthermore in order for the respondent to be able to place these bank
statements before the court, the respondent first had to bring an application to be
allowed to file a supplementary affidavit pertaining to the presentation of these
bank statements. The applicant further referred the court to the case of this
division Wentzel v Banxso (Pty) Ltd and Others (23249/2024) [2025] ZAWCHC
376 (22 August 2025) in which Le Grange J, held that;
“Rule 38 makes provision for the manner in which evidence would be adduced
at a trial. In addition, Rule 38 does not ordinary deal with motion proceedings ,
as Rule 6(5) (g) does not permit a party on his own authority to cause the
Registrar to subpoena a witness to appear at the hearing of the application. That
authority only vests in the court , which may grant leave for a person to be
subpoenaed.”
[25] Applicant further submitted that the general rule is that Rule 35 does not
apply to application proceedings , further that only in exceptional circumstances
can a subpoena be issued in application proceedings , subject to an applicant
providing an explanation as to why a court should deviate from the general
principles lais down in Rule 38, as was stated by Lekhuleni J, in SP v SB and
another [2025] ZAWCHC 528 (14 November 2025).
[26] It is submitted by the applicant that the respondent failed to articulate
explicitly their exceptional grounds in their answering affidavit why this court
should deviate from the general principles in terms of Rule 38. Further that they
have disputed from the onset the existence of an oral agreement which resulted
in a material dispute of fact as the respondent has to prove the existence of this
alleged oral agreement. Further whether the bank statements is needed by the
respondent is neither here nor there as the respondent was obligated to approach
the court in terms of Rule 35(13) for an order and permission of this court to
discover these bank statements . In addition, the respondent was well aware that
the process of Rule 35(13) needed to be adhered to, as evidenced by the
correspondence received from the respondent attached and marked as “ RS5” to
their answering papers.
[27] The applicant submitted that the respondent ha d two alternatives
available to him upon realizing that a dispute of fact arose in the main
application. Firstly , the respondent could either withdraw the pending main
application and place the matter back on roll by action proceedings ,
alternatively the respondent could have applied to this court and provided an
explanation as to what is so exceptional that th is court has to go against the
general rules predicating Rule 38 and allow that a subpoena be issued in
application proceedings.
[28] Applicant further submitted that the respondent failed to explain why
Rule 38 has to be bend for him as in April 2026 the respondent was made aware
by the applicant of his intention not to make these documents available to the
respondent. Upon receipt of the subpoena on 31 July 2026 , they immediately
wrote to the respondent’s attorney’s explaining that there was no exceptional
circumstances which entitled the respondent to make use of this extraordinary
method in application proceedings, but instead of withdrawing the subpoena his
attorneys were informed by the respondent’s attorneys to proceed with
litigation. Thus, he seeks a punitive cost order to be granted against the
respondent.
Respondent’s submissions
[29] During argument the respondent submitted that the court has to look at
the conduct of the parties when they entered into an oral agreement and what
the probabilities are to be reasonably assumed under the circumstances. That the
respondent had previously been given monthly financial updates on the progress
of the business by the applicant. That this situation changed at the end of 2025.
[30] He conceded that he brought an urgent application to enforce the
agreement between himself and the applicant and that the applicant in their
answering affidavit denied the existence of the agreement between them. He
further confirmed that there is a joinder application to join the shareholders to
the pending main application but that the joinder application has yet to be
enrolled.
[31] He further conceded during argument that the manner in which he was
supposed to have obtained access to the bank statements was via discovery but
submitted that his request for these bank statements was denied by the
applicant. Furthermore, that he need these bank statements to see what money
went into the business and the profits that were made, in order for him to prove
the conduct of the agreement relied upon by him i n the pending main
application.
[32] He further submitted that under appropriate circumstances subpoenas can
be obtained in application proceedings to get evidence. He referred the Court to
the unreported matter of Desert Oil (Pty) Ltd v Ashwina Raja and Others
(22845/2019) WCHC (14 December 2020) , which dealt with arbitration
proceedings. He submitted that it was held in this matter that when dealing with
payments in arbitration proceedings a litigant has the right to seek the support of
a subpoena to be able to prove its case. That the court has to look at the facts
and circumstances of each case individually. I pause to point out that the case of
Desert Oil [supra] is distinguishable from this matter as it involved an
arbitration process where proceedings provides for subpoenas.
[33] The respondent further submitted that they require the bank statements to
prove that he is entitled to reclaim his company. That by using the subpoena to
obtain access to these bank statements is not an abuse of process , as the
applicant denied the existence of the agreement , leaving him with no alternative
but to prove the existence of this agreement by way of these bank statements. In
addition, these bank statements belong to the second applicant who does not
have any conceivable rights that can be infringed if the respondent together with
his attorney is allowed to go through the bank statements. Thus, the subpoena
must stand and the application to set aside the subpoena must be dismissed with
costs.
Applicable Legal Principles and Discussion
[34] As foreshadowed above, the applicant seeks an order for the subpoena
duces tecum to be set aside. The subpoena was issued under case 2026-072786
which is still pending in this court. The pending application has been enrolled
for hearing in February 2027. The applicant raised a material dispute of fact in
that matter relating to the existence of an agreement between the parties.
[35] I first turn to deal with the issue of an abuse of process. In the matter of
S.P v S.B ( 2025/054457) [2025] ZAWCHC 253 (19 June 2025) it was stated
that;
“It is well established in our law that in action or trial proceedings, the Registrar
of the court may issue a subpoena duces tecum as provided for in Rule 38 of the
rules of this court . Rule 38 (1)(a)(iii) and (c) of the Uniform Rules make
provision for various procedures to procure evidence for a trial. In addition ,
Rule 38 makes provision for the manner in which evidence will be adduced at a
trial. It does not ordinarily deal with motion proceedings”
[36] This general principle pertaining to Rule 38 was reaffirmed in the case of
Wentzel v Ban xso (Pty) (Ltd) and Others (23249/2024) [2025] ZAWCHC 378
(22 August 2025), where it was held that;
“[21] …Rule 38 makes provision for the manner in which evidence would be
adduced at a trial. It does not ordinarily deal with motion proceedings, since
Rule 6(5)(g) does not permit a party on his own authority to cause the Registrar
to subpoena a witness to appear at the hearing of the application. The authority
vests solely with the Court, which may grant leave for a person to be
subpoenaed.”
[37] It is trite law that in application proceedings an applicant has to make out
his case in his founding papers. It is common cause that there is an alleged
agreement between the parties which existence is disputed by the applicant . It is
further common cause that the main application is motion proceedings. That the
matter has already been enrolled on the opposed roll to be heard in February
2027. No order has been granted by the court under Rule 35(13) for discovery
of any documents in the main application, neither has the main application been
referred for oral evidence or trial in terms of Rule 6(5)(g) of the uniform rules
of this court. Furthermore, in the application for the subpoena t here are no
witnesses identified and no hearing date specified.
[38] I agree with the submissions of the applicant that the general rule is that
Rule 35 does not apply to motion proceedings. A subpoena may only be granted
under exceptional circumstances in application proceedings. The obligation is
on the applicant seeking the subpoena to explain the exceptional circumstances
clearly and succinctly in his papers for it to be allowed by a court. It is clear in
this matter before me that the issuing of this subpoena amounts to a procedural
irregularity as this subpoena has been issued by the Registrar of this court in
pending motion proceedings to the respondent without the leave of this court .
The respondent further in his answering affidavit does not set out any
exceptional grounds why this court should deviate from the general principles
prescribed by Rule 38. I am thus of the view that a subpoena may not be used to
compel a non-party to provide a litigant with pre -hearing access to confidential
documents so that a litigant may investigate whether he need to substitute or
make out his case, even more so in application proceedings. I am this of the
view that this subpoena was obtained with ulterior procedural purpose and falls
beyond the proper function of Rule 38 and as such the respondent won’t suffer
any prejudice if it is set aside by this court.
[39] The respondent in his answering affidavit conceded that he must
demonstrate the existence of an oral agreement in the main pending application.
Further that he needs the bank statements to do so. The necessity of these bank
statements is irrelevant, as they cannot substantiate his claims in application
proceedings, as he had to make out his case in his founding papers . Further in
terms of Rule 35(13) the respondent is obligated to approach this court for an
order to discover the disputed bank statements. Especially since he and his
attorney are aware of the process to be followed as evidenced from the email
correspondence sent to the applicant ’s attorney, annexed and marked “RS5” to
the respondent’s answering papers,
“3. We kindly request the aforementioned documents by close of business , 10
April 2025 failing which we hold instruction to proceed with an application in
terms of Rule 35(13), the costs of which your client will be held liable for.”
[40] It is paten tly clear that the respondent knew which procedure to use but
instead elected to ignore it and chose on his own authority to cause the Registrar
to issue a subpoena to obtain these bank statements. Which according to
Wentzel v Banxso (Pty) (Ltd) and Others [supra] it was held that it is not
permitted as t he authority to grant leave for a person to be subpoenaed only
vests in the Court.
[41] For all the reasons set out above, I am inclined to agree with the applicant
that ignoring the general principles of Rule 35(13) and Rule 38 of the uniform
rules of this court is a clear abuse of court process. The respondent is aware that
there is a dispute of fact and the process to be used open to him is to either
withdraw the matter from the opposed motion roll and enroll it in action
proceedings or apply to this court and explain why a subpoena is needed in
application proceedings , which the respondent has failed to do. Rule 35 (13)
does not automatically operate in application proceedings as it requires a court
order. Therefore, only after the respondent has followed the correct court
process, this court will exercise its judicial discretion to determine whether there
are exceptional circumstances to grant the respondent leave for a subpoena to be
issued in application proceedings.
[42] It is further my considered view that if this court were to allow litigants
not to observe court Rules, which are important in the administration of justice ,
this Court will be opening the door for an abuse of court process. It is clear from
the facts stated above that the respondent failed to comply with court process by
not complying with the general principles of Rule 35(13) and Rule 38 . The
Supreme Court of Appeal in Beinash v Wixley 1997 (3) SA 721 (SCA)
confirmed that the Court has inherent power to prevent abuse of its process and
may set aside a subpoena that is so wide that it becomes oppressive, or where it
is used for an improper purpose. The subpoena is expressed in the widest terms
in that it wants every statement for every account , including information
relating to persons who are not party to the litigation. Furthermore, it is obvious
from the respondent’s answering papers that the subpoena is not intended to
secure the attendance of witnesses in action proceedings, but rather a means of
obtaining information to supplement his case in the pending matter, which has
been enrolled for hearing in February 2027.
[43] I further find that the applicant will suffer prejudice in the event that these
confidential bank statements are disclosed and inspected by the respondent and
his attorney , as it amounts to an irregular intrusion into the privacy of the
applicants’ financial affairs without a proper court order . Further, once the se
banking statements have been disclosed and inspected, their confidentiality
cannot be restored . The burden and prejudice the applicant will suffer is thus
grossly disproportionate to any articulated evidential value.
[44] I am further satisfied that a proper case has been made out by the
applicant in that the applicant has established a clear right to protect the
integrity of the court’s process and to prevent the unlawful disclosure of the
second applicant’s confidential banking accounts. That in the event that this
court does not grant the relief sought as in the Notice of Motion the applicant
will suffer both actual and imminent harm. I am inclined to agree with the
applicant that once the banking records have been disclosed to the respondent
and in the process inspected, the confidentiality of those records cannot be
restored.
[45] I am further of the view that there is no adequate alternative remedy
available to the applicant as F NB is obliged to comply with an order of court
and thus cannot disregard a subpoena issued by the Registrar . I am also inclined
to agree with the applicant that a subsequent claim for damages or exclusion of
the documents will not reverse the disclosure.
Conclusion
[46] Whilst I find that the applicant has satisfied the requirements for both
interim and final interdictory relief, I also find under these circumstances and
for the reasons already stated that it will be in the interest of justice to grant
final relief as th e applicant has satisfied that he has a clear right, that he will
suffer injury reasonably apprehended and that he has no alternative remedy.
Costs
[47] It is trite that costs follow the event. The main applicant was afforded an
opportunity to withdraw the subpoena as evidenced from emails attached to the
papers, but elected not to do so, despite being aware of the correct court process
to follow. I am therefore inclined to grant a cost order in favour of the applicant
in this urgent application. The First respondent is ordered to pay the costs of this
application on an attorney and client scale.
Order
[48] Consequently, given all these considerations , the following order is
granted:
1. Condoning, in terms of Uniform Rule 6(12), the Applicants’ non -compliance
with the forms, service and time -periods prescribed by the Uniform Rules of
Court and directing that the application be heard as one of urgency.
2. That the subpoena duces tecum dated 7 May 2026, issued by the Registrar on
23 June 2026 at the instance of the First Respondent and directed to the Second
Respondent, First National Bank, a division of First Rand Bank Limited, is
declared irregular and an abuse of process of this Court and set aside.
3. That the First Respondent be ordered to pay the costs of this application on an
attorney and client scale.
___________________________
S MTHIMUNYE
ACTING JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Applicant Adv Tiaan Du Preez
Tel: 021 424 5158 // tiaan@capebar.co.za
Instructed by Visser and Partners
Per: IDP Visser
Tel: (021) 948 8280 // Email: law@vvlaw.co.za
Counsel for the First Respondent Adv Bryan Hack
Instructed by Lucas Dysel Crouse Inc.
Per: R Nunes
Tel: (021) 975 2870 // raquel@ldcrouse.co.za