Steyn v Meyer (59537/2021) [2022] ZAGPPHC 772 (13 October 2022)
- Citation
- [2022] ZAGPPHC 772
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- S. Potterill
- Case number
- 59537/2021
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- S. Potterill
- Case number
- 59537/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the respondent's issuance of a subpoena duces tecum in application proceedings was irregular, as Rule 38 is designed for trial proceedings where witnesses are required to attend and produce documents. In application proceedings, evidence is presented by affidavit, and only the court may order oral evidence or trial if a dispute of fact arises. The respondent's chosen procedure did not permit the use of a subpoena duces tecum, and the appropriate remedy for obtaining documents in application proceedings is through Rule 35(13). Accordingly, the subpoena was set aside as an irregular step under Rule 30, and costs were awarded to the applicant.
Court disposition
The subpoena duces tecum dated 23 March 2022 is set aside as an irregular step. The respondent is ordered to pay the costs on a party and party scale.
Orders
- The subpoena duces tecum dated 23 March 2022 is set aside.
- The respondent is to pay the costs on a party and party scale.
02
Material facts
Parties
Dominic John Steyn
Applicant Counsel: G. KyriazisLourika Meyer
Respondent Counsel: L. van der WesthuizenAmounts and remedies
- Claimed Monthly Maintenance: ZAR 4,495
03
Procedural history
Posture
Civil Application / Rule 30 Application to Set Aside Subpoena Duces Tecum
04
Questions and positions
Legal issues
- 01
Whether a subpoena duces tecum may be issued in application proceedings without the court's consent.
- 02
Whether the respondent's use of Rule 38 to obtain documents in an application is irregular.
- 03
Whether the applicant is entitled to have the subpoena set aside as an irregular step.
Party arguments
- Applicant
- The applicant contended that the subpoena duces tecum issued by the respondent was an irregular step under Rule 30, as Rule 38 is intended for trial proceedings to secure the attendance of witnesses, not for applications. The applicant argued that in application proceedings, evidence is presented by affidavit and only the court may order oral evidence or trial if a dispute of fact arises. The applicant sought the setting aside of the subpoena and costs.
- Respondent
- The respondent argued that the subpoena was necessary to obtain documentary evidence regarding the applicant's financial position, as he claimed financial difficulty while acquiring property and a vehicle. The respondent maintained that there would be no dispute of fact in the main application and that the matter could proceed on affidavits. The respondent did not formally oppose the applicant's condonation for late filing and abandoned her conditional counter-application.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 38
Rule 38 of the Uniform Rules of Court provides for the issuing of subpoenas to secure the attendance of witnesses and production of documents for trial proceedings, not for application proceedings.
- 02
Uniform Rules of Court
In application proceedings, only the court may order oral evidence or trial and direct the issuing of subpoenas if a dispute of fact arises.
- 03
Uniform Rules of Court, Rule 35(13)
Rule 35(13) allows for discovery of documents in application proceedings, providing an appropriate remedy for parties seeking documents.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the respondent's issuance of a subpoena duces tecum in application proceedings was irregular, as Rule 38 is designed for trial proceedings where witnesses are required to attend and produce documents. In application proceedings, evidence is presented by affidavit, and only the court may order oral evidence or trial if a dispute of fact arises. The respondent's chosen procedure did not permit the use of a subpoena duces tecum, and the appropriate remedy for obtaining documents in application proceedings is through Rule 35(13). Accordingly, the subpoena was set aside as an irregular step under Rule 30, and costs were awarded to the applicant.
Obiter and limits
- The court noted that the respondent is not without remedy, as Rule 35(13) provides for discovery of documents in application proceedings.
- The court expressed concern that the nature of the main application may give rise to a bona fide dispute of fact, which could render the application still-born if not properly addressed.
Court disposition
The subpoena duces tecum dated 23 March 2022 is set aside as an irregular step. The respondent is ordered to pay the costs on a party and party scale.
- The subpoena duces tecum dated 23 March 2022 is set aside.
- The respondent is to pay the costs on a party and party scale.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number: 59537/2021
REPORTABLE: NO.
OF INTEREST TO OTHER JUDGES: NO.
REVISED.
2022-10-13
In the matter between:
DOMINIC
JOHN STEYN
Identity number: [....]
Applicant
and
LOURIKA
MEYER
Identity number: [....] Respondent
JUDGMENT
POTTERILL J
[1] In this matter for ease of reference I will refer to the parties by name. Ms. Meyer issued and served a subpoena duces tecum on Investec Bank Ltd, the bank who Mr Steyn applied to for a mortgage bond. The subpoena duces tucem was issued by Ms Meyer purportedly in terms of Rule 38 of the Uniform Rules of Court.
[2] Ms Meyer and Mr Steyn are unmarried, but have a daughter. Ms Meyer launched an application [the main application] to declare a motor vehicle a gift from Mr Steyn to her and to order Mr Steyn to pay the monthly instalment and insurance and to register the vehicle in the applicant’s name upon the last instalment being paid. Ms Meyer also seeks that an alleged agreement to pay maintenance in the amount of R4 495.00 be enforced including ancillary relief
thereto. Furthermore interim relief is sought pertaining to the primary residence and contact rights of the minor child pending an investigation by the Family Advocate.
[3] I had expressed my concern to counsel for Ms Meyer that the nature of the application leans itself to a bona fide dispute of fact which could render the application still-born. Counsel however was of the view that in the main application there would be no dispute of fact and the matter could proceed on mere affidavits.
[4] In the answering affidavit to the main application Mr Steyn set out that he was experiencing financial difficulties and that he cannot afford to pay the amount maintenance claimed. This averment caused Ms Meyer to resort to the issuing and service of the subpoena, because Mr Steyn had bought a property and a vehicle, yet was pleading poverty.
[5] Mr Steyn filed the replying affidavit to the Rule 30 application late and sought condonation for the late filing thereof. On behalf of Ms Meyer, in order to finalise the matter, no formal objection to the condonation application was placed on record. Accordingly condonation for the late filing is granted.
[6] The conditional counter-application of Ms Meyer was conceded to be irregular in Rule 30 proceedings and it was abandoned.
The Rule 30 application
[7] Mr Steyn is seeking that the subpoena duces tecum dated 23 March 2022 be set aside as an irregular step in terms of Rule 30.
[8] Much of the opposition to this application is only relevant to the main application. The crisp issue is whether in an application a party can without the court’s consent issue such subpoena. Rule 38(1)(a)(iii) and (c) of the Uniform Court Rules makes provision for various procedures to procure evidence for a trial. Utilising Rule 38 in these circumstances is irregular. Firstly, because it relates to securing the attendance of a witness for trial. If, as argued, there will be no trial to resolve factual disputes then no witness can testify. The procedure cannot be utilised to secure documentation and not a witness to tender the document into evidence. A subpoena duces tecum’s whole purpose is to facilitate the attendance of such witness to produce a document. In this application procedure chosen by the legal representation of Ms Myer no witnesses can testify. By no means can this rule be utilised for an application.
[9] Ms Meyer chose to proceed by means of application. Only the court can in application proceedings order and only when there is a dispute of fact, whether the application will be dismissed, or referred to oral evidence, or trial and whether witnesses must be subpoenaed.
[10] Ms Meyer is not without a remedy. Rule 35(13) caters for discovery of documents in application proceedings.
[11] I see no reason why the costs must not follow the result, but I do not find the jurisdictional requirements for a punitive costs order. Accordingly, I make the following order:
11.1 The subpoena duces tecum dated 23 March 2022 is set aside.
11.2 The respondent is to carry the costs on a party and party scale.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE NO: 59537/2021
HEARD ON: 11
October 2022
FOR THE APPLICANT: ADV. G. KYRIAZIS
INSTRUCTED BY: Cowan-Harper
Madikizela Attorneys
FOR THE RESPONDENT: ADV. L. VAN DER WESTHUIZEN
INSTRUCTED BY: Barnard
Incorporated Attorneys
DATE OF JUDGMENT: 13 October 2022
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