- The High Court has set aside a subpoena issued against the AGSA and Phephu, ruling that the application was unfounded.
- According to the court, the subpoena was used to obtain documents that, in reality, do not exist.
- Solbeth Security Protection Services CC was ordered to pay costs on the more punitive scale C, reflecting the court’s view of the seriousness of the abuse.
Solbeth Security Protection Services CC had attempted to compel the Auditor General of South Africa (AGSA) to produce audit records of a contract with the eThekwini Municipality.
However, the High Court in Pietermaritzburg found that those records do not exist and determined that using a subpoena to demand them constituted an abuse of the court’s process.
Acting Judge N Siwendu set aside the subpoena in its entirety, finding that it served no lawful purpose and was used to pressure AGSA into disclosing information it did not possess.
AGSA and Nokuthula Phephu approached the court to have the subpoena cancelled after Solbeth Security Protection Services CC sought records allegedly showing that it had provided CCTV services to the eThekwini Municipality.
The dispute arises from ongoing litigation in which Solbeth claims more than R41 million from the municipality for security services it says were provided between October 2019 and September 2020. Solbeth’s case partly relied on statements made during a municipal council meeting, where Phephu had initially indicated that a contract existed.
However, that statement was later withdrawn. The Auditor General clarified that it was not based on any audit findings or verified documentation and issued a written apology to correct the record.
AGSA insists records do not exist
Despite these clarifications, Solbeth continued to pursue access to documents via a Promotion of Access to Information Act (PAIA) request, and subsequently issued a subpoena seeking records that could support the existence of the contract.
The Auditor General argued that, under the Public Audit Act, it could not be compelled to disclose information obtained during audits. The AGSA further contended that the subpoena amounted to an abuse of process because the documents sought did not exist and were not in its possession.
Solbeth opposed the application, arguing the matter was moot and claiming it had already received the information it sought. The company also maintained that there was no need to withdraw the subpoena.
The court rejected this argument, finding that the Auditor General had consistently maintained it did not possess the documents being demanded.
Judge Siwendu stated, “The AGSA does not have, nor is it aware of, any reports, investigations or findings confirming that Solbeth Protection Services CC is currently providing cyber CCTV services to the eThekwini Municipality.”
The court found that Solbeth persisted with the subpoena even after being told the information did not exist, and even attempted to use the subpoena to demand additional material beyond what had been specified.
Judge Siwendu ruled, “The subpoena serves no legitimate purpose but operates as an instrument to compel the applicants in circumstances where the reason for its issue does not exist.”
The court concluded that the subpoena was not issued for a bona fide purpose, but rather as a means to pressure the Auditor General into disclosing information protected under the Public Audit Act.
Addressing Solbeth’s argument that the matter was moot, the court made it clear the subpoena remained legally valid until set aside, and thus, a live dispute persisted.
Judge Siwendu explained, “A live dispute exists as the subpoena is valid until cancelled, set aside or withdrawn.”
Court finds abuse of process and addresses costs
Ultimately, the court found that the subpoena amounted to an abuse of process and had to be set aside. The judgment emphasised that legal procedures cannot be used to pursue information that does not exist or to bypass proper legal processes.
Regarding costs, the court held that Solbeth’s refusal to withdraw the subpoena led to unnecessary litigation. Judge Siwendu remarked, “The opposition resulted in an unnecessary hearing,” and ordered Solbeth to pay costs on Scale C.
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