Stevens and Others v Investec Bank Ltd and Others (2012/32900) [2012] ZAGPJHC 226 (25 October 2012)

Stevens and Others v Investec Bank Ltd and Others (2012/32900) [2012] ZAGPJHC 226 (25 October 2012)

The court found that while the banker-client relationship is founded on confidentiality, this duty is not absolute and may be interrupted by lawful process, such as a section 205 subpoena. However, where there are allegations of abuse of process or misuse of SAPS powers in procuring such subpoenae, affected parties are entitled to seek review and interim relief to preserve confidentiality pending the outcome. The court held that the applicants had established a prima facie case for interim relief, given the seriousness of the allegations and the risk to privacy. The documentation produced under the subpoenae was ordered to be sealed and retained by the Registrar, with no access granted to...

Citation
[2012] ZAGPJHC 226
Parties
Applicant: Mark Walter Stevens; Applicant: MWS Trust; Applicant: Lindsay Stevens NO (Trustee of MWS Trust); Applicant: Mark Walters Stevens NO (Trustee of MWS Trust); Applicant: PJA van Lingen NO (Trustee of MWS Trust); Applicant: The Capital Property Fund; Applicant: ABSA Bank Limited; Applicant: Property Fund Managers Limited; Applicant: Resilient Property Income Fund Limited; Applicant: Fortress Income Fund Limited; Applicant: Desmond de Beer; Applicant: Barry Lester Stuhler; Applicant: Andries de Lange; Applicant: David John Lewis; Applicant: Jacobus Johann Kriek; Applicant: Nicolaas Willem Hanekom; Applicant: Abraham Albertus Bornman; Applicant: Craig Brabazon Hallowes; Applicant: Andrew Edward Teixeira; Applicant: Jeffrey Nathan Zidel; Respondent: Investec Bank Limited; Respondent: Nedbank Limited; Respondent: BOE Stock Brokers (Pty) Limited; Respondent: Warrant Officer Stoney Steenkamp NO, Organized Crime Unit, East Rand; Respondent: Colonel Steyn NO – The Commander, Organized Crime Unit, East Rand; Respondent: Commissioner of Police, Gauteng General M Petros NO; Respondent: Minister of Police; Respondent: National Prosecuting Authority c/o DPP WLD
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 October 2012
Case Number
2012/32900
Procedural Posture
Urgent Application / Interim Interdict Pending Review of Section 205 Subpoena
Outcome
Interim interdict granted preserving confidentiality of banking documentation pending review; access to Steenkamp’s affidavit refused; costs reserved.
Judges
Satchwell
Legal Topics
Bank Confidentiality, Section 205 Subpoena, Interim Interdict, Review of Magistrate Decision, Abuse of Process, Privacy Rights
Civil Procedure Banking and Finance Criminal Law Bank Confidentiality Section 205 Subpoena Interim Interdict Review of Magistrate Decision Abuse of Process +1 more

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Parties

Mark Walter Stevens

Applicant

MWS Trust

Applicant

Lindsay Stevens NO (Trustee of MWS Trust)

Applicant

Mark Walters Stevens NO (Trustee of MWS Trust)

Applicant

PJA van Lingen NO (Trustee of MWS Trust)

Applicant

The Capital Property Fund

Applicant

ABSA Bank Limited

Applicant

Property Fund Managers Limited

Applicant

Resilient Property Income Fund Limited

Applicant

Fortress Income Fund Limited

Applicant

Desmond de Beer

Applicant

Barry Lester Stuhler

Applicant

Andries de Lange

Applicant

David John Lewis

Applicant

Jacobus Johann Kriek

Applicant

Nicolaas Willem Hanekom

Applicant

Abraham Albertus Bornman

Applicant

Craig Brabazon Hallowes

Applicant

Andrew Edward Teixeira

Applicant

Jeffrey Nathan Zidel

Applicant

Investec Bank Limited

Respondent

Nedbank Limited

Respondent

BOE Stock Brokers (Pty) Limited

Respondent

Warrant Officer Stoney Steenkamp NO, Organized Crime Unit, East Rand

Respondent

Colonel Steyn NO – The Commander, Organized Crime Unit, East Rand

Respondent

Commissioner of Police, Gauteng General M Petros NO

Respondent

Minister of Police

Respondent

National Prosecuting Authority c/o DPP WLD

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Review of Section 205 Subpoena

Legal Issues

  1. 1 Whether the applicants are entitled to interim relief preserving bank confidentiality pending review of section 205 subpoenae.
  2. 2 Whether the respondent banks may be interdicted from disclosing information required by the subpoenae.
  3. 3 Whether the applicants are entitled to access the affidavit of Warrant Officer Steenkamp used to procure the subpoenae.

Ratio Decidendi

The court found that while the banker-client relationship is founded on confidentiality, this duty is not absolute and may be interrupted by lawful process, such as a section 205 subpoena. However, where there are allegations of abuse of process or misuse of SAPS powers in procuring such subpoenae, affected parties are entitled to seek review and interim relief to preserve confidentiality pending the outcome. The court held that the applicants had established a prima facie case for interim relief, given the seriousness of the allegations and the risk to privacy. The documentation produced under the subpoenae was ordered to be sealed and retained by the Registrar, with no access granted to...

Court Disposition

Interim interdict granted preserving confidentiality of banking documentation pending review; access to Steenkamp’s affidavit refused; costs reserved.

Orders

  • The Registrar of the South Gauteng High Court shall retain for safekeeping under seal the documentation delivered by the first, second, and third respondents required by the section 205 subpoenae.
  • Neither the applicants nor respondents shall have access to the sealed documentation pending finalisation of the review.