M and Another v M and Another (35079/2019) [2022] ZAGPJHC 1025 (22 December 2022)

M and Another v M and Another (35079/2019) [2022] ZAGPJHC 1025 (22 December 2022)

The court held that the compelling order did not prohibit the respondent from seeking the Company's bank statements by subpoena, as the order simply excluded those statements from the scope of discovery at that stage. There was no finding that the respondent had waived her right to pursue disclosure of the statements later, nor any basis for contempt. The subpoena was not an abuse of process because the bank statements were relevant to the financial issues in the divorce, particularly maintenance and accrual. The applicant conceded relevance by seeking to redact the statements rather than objecting to their production. No confidentiality or other legal interest was identified that would...

Citation
[2022] ZAGPJHC 1025
Parties
Applicant: TJM; Applicant: A COMPANY (PTY) LTD; Respondent: CHM; Respondent: FIRST NATIONAL BANK LIMITED
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 December 2022
Case Number
35079/2019
Procedural Posture
Civil Application / Application to Set Aside Subpoena as Abuse of Process
Outcome
Application dismissed with costs on the attorney and client scale.
Judges
S D J Wilson
Legal Topics
Matrimonial Property Act, Discovery and Subpoena, Abuse of Process, Costs Orders
Family and Children Civil Procedure Matrimonial Property Act Discovery and Subpoena Abuse of Process Costs Orders

Case Brief

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Parties

TJM

Applicant

A COMPANY (PTY) LTD

Applicant

CHM

Respondent

FIRST NATIONAL BANK LIMITED

Respondent

Procedural Posture

Civil Application / Application to Set Aside Subpoena as Abuse of Process

Legal Issues

  1. 1 Whether the first respondent is in contempt of the compelling order by issuing a subpoena for the Company's bank statements.
  2. 2 Whether the subpoena for the Company's bank statements constitutes an abuse of process.
  3. 3 Whether the Company’s bank statements are relevant to the issues in the divorce action.

Ratio Decidendi

The court held that the compelling order did not prohibit the respondent from seeking the Company's bank statements by subpoena, as the order simply excluded those statements from the scope of discovery at that stage. There was no finding that the respondent had waived her right to pursue disclosure of the statements later, nor any basis for contempt. The subpoena was not an abuse of process because the bank statements were relevant to the financial issues in the divorce, particularly maintenance and accrual. The applicant conceded relevance by seeking to redact the statements rather than objecting to their production. No confidentiality or other legal interest was identified that would...

Court Disposition

Application dismissed with costs on the attorney and client scale.

Orders

  • The application to set aside the subpoena is dismissed with costs, including the wasted costs of 13 October 2022, taxed on the attorney and client scale.
  • The second respondent is directed to comply with the first respondent’s subpoena duces tecum within five days of service of this order.