- Judge Mthimunye cancelled an FNB subpoena for more than two years of company bank records.
- The court found the subpoena was irregular and an abuse of the legal process
- The respondent was ordered to pay extra legal costs as a penalty
A businessman who tried to get FNB to release more than two years of company banking records has been stopped by the High Court in Cape Town. The court found he used the wrong legal process and wrongly tried to obtain confidential financial information.
Acting Judge S Mthimunye delivered judgment on 11 August 2026 in a dispute between Johannes Kriel and Robert John Swierstra over an alleged verbal business agreement. The judge called the subpoena irregular and an abuse of the court process, and ordered Swierstra to pay extra legal costs.
Dispute stems from ongoing court application
The dispute comes from a pending application where Swierstra claims there was a verbal agreement between the parties, which Kriel denies ever happened.
The matter had previously been removed from the urgent court roll and was later set down for hearing in February 2027. No order had been made for oral evidence, a trial, or for any documents to be handed over under Rule 35(13).
Despite this, Swierstra got a subpoena ordering FNB to hand over more than two years of banking records for Scandinavian Auto Works (Pty) Ltd. The subpoena asked for statements for all company accounts, including cheque, savings, current, money-market, and other accounts.
FNB warning led to urgent court application
FNB told the company it would comply with the subpoena unless a court order stopped it by 13 August 2026. Kriel urgently went to court to prevent the records from being released. Judge Mthimunye agreed the matter was truly urgent because once confidential banking information is released, the harm cannot be undone.
The judge said Kriel had shown that the risk of disclosure was real and immediate, and that it would be too late for proper remedy afterwards.
Judge says the wrong legal process was used
The main question was whether someone in motion proceedings can get a subpoena from the Registrar without first asking the court for permission.
Judge Mthimunye said Rule 38 usually applies to trial proceedings, and does not normally allow someone in application proceedings to issue a subpoena on their own. Only the court itself can permit such a subpoena in motion proceedings, and only in special cases.
The court found that Swierstra did not give any special reason for skipping the usual process for handing over documents.
Respondent admits wanting records to support his case
During the hearing, Swierstra admitted there was disagreement about the alleged verbal agreement. He said he wanted the bank statements to show what money the business received and what profits were made under the alleged deal.
He also agreed that using the discovery process would normally have been the correct way to get the records. Judge Mthimunye said this was not a proper use of a subpoena. The judge said you cannot use a subpoena to see if documents might help your case after all the affidavits have already been filed.
The right way would have been to ask for a Rule 35(13) order, or to start an action case if oral evidence was needed.
Confidential records kept safe
The court also criticised the subpoena for being too broad, saying it asked for every statement on every account, which would reveal information about people not even involved in the case.
Judge Mthimunye found the subpoena was meant to gather information to boost the pending case, not to secure evidence for a trial. The judge warned that letting people ignore the court rules on discovery and subpoenas would lead to abuse of the legal process.
Extra legal costs ordered
Judge Mthimunye gave final relief, declared the subpoena irregular and an abuse of process, and cancelled it. Swierstra was ordered to pay the costs of the urgent application on a special, larger scale after the court noted he had been given a chance to withdraw the subpoena but refused.
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