S v Murphy and Others (CC27/2018) [2022] ZAWCHC 278 (15 August 2022)

S v Murphy and Others (CC27/2018) [2022] ZAWCHC 278 (15 August 2022)

The court found that the subpoenas duces tecum issued by the accused were impermissibly wide, lacked specificity, and amounted to a fishing expedition based on speculative allegations of prosecutorial misconduct. The defence had not put forward any new evidence to justify their suspicions, nor had they first sought access to the B and C sections of the docket as required. The subpoenas were not aimed at specific documents known to exist but sought to trawl through prosecution records without a factual basis. The court held that such use of subpoenas is an abuse of process and is manifestly unsustainable and vexatious. The proper procedure for an accused suspecting malfeasance is to...

Citation
[2022] ZAWCHC 278
Parties
Applicant: The State; Respondent: Fadwaan Murphy; Respondent: Ulterior Trading Solutions CC; Respondent: Shafieka Murphy; Respondent: Dominic Davidson
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 August 2022
Case Number
CC27/2018
Procedural Posture
Criminal Trial / Application to Set Aside Subpoenas Duces Tecum During Ongoing Criminal Trial
Outcome
The subpoenas duces tecum issued by the accused are set aside as an abuse of process; the subpoena requiring Ms Van der Merwe to testify is confirmed.
Judges
D M Davis
Legal Topics
Subpoena Duces Tecum, Litigation Privilege, Abuse of Process, Fair Trial Rights, Disclosure of Evidence, Criminal Procedure Act
Criminal Law Civil Procedure Subpoena Duces Tecum Litigation Privilege Abuse of Process Fair Trial Rights Disclosure of Evidence Criminal Procedure Act

Case Brief

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Parties

The State

Applicant

Fadwaan Murphy

Respondent

Ulterior Trading Solutions CC

Respondent

Shafieka Murphy

Respondent

Dominic Davidson

Respondent

Procedural Posture

Criminal Trial / Application to Set Aside Subpoenas Duces Tecum During Ongoing Criminal Trial

Legal Issues

  1. 1 Whether the subpoenas duces tecum issued by the accused constitute an abuse of process.
  2. 2 Whether the documents sought by the subpoenas are relevant to the accused's defence.
  3. 3 Whether the subpoenas are impermissibly wide and lack specificity.

Ratio Decidendi

The court found that the subpoenas duces tecum issued by the accused were impermissibly wide, lacked specificity, and amounted to a fishing expedition based on speculative allegations of prosecutorial misconduct. The defence had not put forward any new evidence to justify their suspicions, nor had they first sought access to the B and C sections of the docket as required. The subpoenas were not aimed at specific documents known to exist but sought to trawl through prosecution records without a factual basis. The court held that such use of subpoenas is an abuse of process and is manifestly unsustainable and vexatious. The proper procedure for an accused suspecting malfeasance is to...

Court Disposition

The subpoenas duces tecum issued by the accused are set aside as an abuse of process; the subpoena requiring Ms Van der Merwe to testify is confirmed.

Orders

  • The subpoena duces tecum issued by the first and sixth accused on 7 April 2022 in respect of Ms Joslin Pienaar is set aside.
  • The subpoena duces tecum issued by the first and sixth accused on 7 April 2022 in respect of Ms Jolou Van der Merwe is set aside.