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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 12909/2016

In the matter of

NQWABABA, BONGANI                                                            First Applicant

CORNELL, STEPHEN RUSSEL                                           Second Applicant

SASOL SOUTH AFRICA LTD                                                   Third Applicant

and

MASTER BLASTER (PTY) LTD                                             First Respondent

NORTHERN EXPLOSIVES 1 CC                                     Second Respondent

In the matter between:

MASTER BLASTER (PTY) LTD                                                    First Plaintiff

NORTHERN EXPLOSIVES 1 CC                                             Second Plaintiff

and

SASOL SOUTH AFRICA LTD                                                           Defendant

JUDGMENT

 

DOSIO AJ:

INTRODUCTION

[1] This is an application to set aside the subpoenas caused to be served by the respondents (the plaintiffs in the main action) on Mr Bongani Nqwababa and Mr Stephen Cornell (hereinafter referred to as “the first and second applicants”) on the 5^th of April 2019.

[2] The subpoena’s state that the first and second applicants are to bring with them;

1.1 Any written reports prepared by or on behalf of Sasol Nitro and submitted to:

1.1.1 Murray and Roberts cementation; and/or

1.1.2 Booysendal Mine; and/or

1.1.3 Northam Platinum Limited; and/or

1.1.4 The Chief Inspector of Explosives; dealing with the issues set out in paragraph 1 above.

1.2 A copy of the records of the disciplinary hearings of Johan van den Berg, Sasol Nitro Account Manager and Simon Mashweu, Sasol Nitro driver

[3] The application is opposed.

 

BACKGROUND

[4] The trial in this matter was to commence on the 6^th of May 2019. On the 1^st of April 2019, the respondents/plaintiffs caused subpoenas to be issued out of the above honourable Court. The subpoenas were served on the 5^th of April 2019 and brought to the attention of Mr Sibusiso Nkabinde, (hereinafter referred to as “Mr Nkabinde”), who is the deponent to the founding affidavit and  also a senior manager employed by Sasol South Africa Limited (the defendant and the third applicant).

[5] The respondents/plaintiffs were invited to withdraw the subpoenas by close of business on the 15^th of April 2019, however the respondents/plaintiffs did not and accordingly the applicants content that they have been compelled to approach the court to have them set aside.

[6] The applicants contend that the subpoenas were issued just more than a month before the start of the trial and the first and second applicant, who occupy senior managerial positions in Sasol Limited, have to come to Court on what is relatively short notice. It is contended that both the first and second applicant have full diaries and already have prior commitments scheduled long in advance, and that Sasol Limited will be deprived of its two most senior executives from the 6^th of May 2019 until excused from the trial proceedings.

[7] The respondents/plaintiffs contend that the subpoenas were already served on the 5^th of April 2019 and there is no explanation why they were only brought to the attention of Mr Nkabinde on the 8^th of April 2019 and not sooner. Nor is there any explanation why the application before this court was only launched on the 18^th of April 2019 in the urgent court.

 

Why the subpoenas are according to the applicants an abuse of process

[8] It is contended by the applicants that the subpoenas are an abuse of process for the following reasons;

1. The subpoenas require the first and second applicant to testify on behalf of the respondents/plaintiffs, however, neither can give any admissible evidence helpful to the respondent/plaintiff’s case because;

1.1  The first and second applicants were appointed as joint CEOs of Sasol Limited with effect from the 1^st of July 2016, more than three years after the respondent’s/plaintiff’s alleged cause of action arose.

1.2  The second applicant is responsible for the Sasol Group’s global operations outside of Southern Africa and was first appointed as the executive vice president, international operations on the 1^st of  February 2014.

1.3  The first applicant was initially appointed as a non-executive director of Sasol Limited on the 5^th of December 2013. Between the 1^st of March 2015 and the 30^th of June 2016, he was an executive director and chief financial officer of Sasol Limited.

1.4  Neither the first or second applicant were according to the applicant’s counsel involved with, nor did they play a role in Sasol Nitro and the third applicant/defendant at any time relevant to the respondent/plaintiff’s cause of action. It is thus contended that the first and second applicants are totally unable to be of any assistance to the Court in the determination of the triable issues remaining before the court.

2. The documents requested from the first and second applicants are also not in the possession and control of the first or second applicants.

2.1 The documents were previously requested from the third applicant/defendant in terms of Rule 35(3) notice on the 27^th of September 2018.

2.2 The third applicant/ defendant deposed to a response to the rule 35(3) notice, which was served on the respondent/plaintiff’s attorney on the 5^th of November 2018. The documents identified in the subpoenas were requested in the rule 35(3) notice.

2.3 The respondent/plaintiff’s evidently accepted the third applicant/defendant’s response and took no further steps to compel further and better discovery.

 

EVALUATION

[9] The first and second applicants have demanded that the subpoenas concerned be withdrawn, however, they have made no inquiry as to whether they could be accommodated at other times in court to accommodate their pre-existing commitments.

[10] While it may be so that appearance in a Court can be inconvenient, it is common practice that where a company is the defendant and there is an allegation of damages arising from the unlawful conduct of the company and its employees, (as in this matter), it is the directors and officers of the holding company, with control of that company, which must give evidence.

[11] Similarly where documents within the possession and control of a company are required for trial, subpoenas are routinely issued requiring that the chief executive officer appear before court and produce the documents specified in the subpoena.

[12] Although Sasol Limited may be a large and powerful company, and its chief executives may have a busy diary, they nevertheless remain subject to the Superior Courts Act, the Uniform Rules of Court and indeed the rule of law to testify if subpoenaed.

[13] The respondents/plaintiffs content that an explanation and evidence is required not only of the extent to which Sasol Limited accepts that the third applicant’s/defendant’s employees acted unlawfully, but also regarding;

1.1  the steps taken by Sasol Limited and the third applicant/defendant once the unlawfulness was established;

1.2  the inquiries made insofar as the reasons for such unlawfulness and the

circumstances and short comings in control which led to the unlawfulness;

1.3  measures taken by the company and its board once the unlawfulness was admitted

to and acknowledged by the third applicant/defendant;

1.4  the manner in which such unlawfulness was communicated to third parties.

[14] The respondents/plaintiffs content the purpose of the subpoenas is to procure the aforesaid evidence before Court as it is relevant both to causation and the extent of damages to the respondent’s/plaintiff’s reputation, resulting from the unlawful conduct. Accordingly I can see no reason why the first and second applicant cannot give evidence in this regard.

[15] If there is indeed a report dated the 28^th of May 2013, as stated by the respondents/plaintiffs, prepared by the third applicant’s/defendant’s lead investigator, then it is logical that the outcome of that investigation and the response by Sasol Limited and the third applicants/defendants is clearly of relevance to the trial.

[16] Given the seriousness of the allegations concerned, the board of Sasol Limited at the time and its current chief executive officers ought to be well aware of the outcome of the investigation, the recommendations and the whereabouts of the report. The records concerned are not specific to any particular chief executive officer, they exist within the organisation and a change of chief executive officers cannot preclude a party from obtaining company records, which were generated prior to such chief executive officer’s appointment. There is no suggestion in the founding affidavit that the alleged third applicant’s/defendant’s illegal conduct was not brought to the attention of or dealt with by Sasol Limited

[17] If there indeed was a failure by Sasol Limited and the third applicant/defendant to publicly acknowledge the third applicant’s/defendant’s unlawfulness, and they remained silent in the circumstances, (as contended by the respondents/plaintiffs), and the respondents/plaintiffs were in fact blamed and punished for a lack of control leading to the removal and theft of detonators, it would be relevant to the reputational damages suffered by the respondents/plaintiffs. Such failure to publicly acknowledge this or silence in this regard will surely be in the company records and can surely be retrieved by the first and second applicant, even though this alleged incident occurred prior to their appointment as chief executive officers.  It is not as if the first and the second applicant were totally uninformed as to the goings of the third applicant/defendant. The first applicant was initially appointed as a non-executive director of Sasol Limited on the 5^th of December 2013. Between the 1^st of March 2015 and the 30^th of June 2016, the first applicant was an executive director and the chief financial officer of Sasol Limited. The second applicant who is responsible for the Sasol Group’s global operations outside of Southern Africa, was first appointed as the executive vice president, international operations on the 1^st of February 2014. This is merely a year after the respondent’s/plaintiff’s cause of action arose. I can accordingly find no reason why one cannot look at the holding company, who is the shareholder, to also explain what has transpired.

[18] Section 36 (5) of the Superior Courts Act states;

“When a subpoena is issued to procure the attendance of any person as a witness or to produce any book, paper or document in any proceedings, and it appears that-

(a) he or she is unable to give any evidence or to produce any book, paper or document which would be relevant to any issue in such proceedings; or

(b) such book, paper or document could properly be produced by some other person; or

(c) to compel him or her to attend would be an abuse of the process of the court,

any judge of the court concerned may, notwithstanding anything contained in this section, after reasonable notice by the Registrar to the party who sued out the subpoena and after hearing that party in chambers if he or she appears , make an order cancelling such subpoena.”

[19] In the matter of Hudson Appellant v Hudson and Another Respondents 1927 AD 259 the court held that “Every court has the inherent power to prevent the abuse of the machinery provided for the purpose of expediting the business of the court. Where, therefore, the court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice it is the duty of the court to prevent such abuse. But it is a power to be exercised with great caution and only in a clear case.”

[20] The learned Mohamed CJ in the case of Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA at pages 734 to 735 stated;

“There can be no doubt that every Court is entitled to protect itself and others against an abuse of its processes. When it is satisfied that the issue of a subpoena in a particular case indeed constitutes an abuse it is quite entitled to set it aside…What does constitute an abuse of the process of the Court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of ‘abuse of process’. It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of truth are used for a purpose extraneous to that objective. (Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W) at 820A-B; Taitz The Inherent Jurisdiction of the Supreme Court (1985) at 16.) A subpoena duces tecum must have a legitimate purpose…Ordinarily, a litigant is of course entitled to obtain the production of any document relevant to his or her case in pursuit of the truth, unless the disclosure of the document is protected by law. The process of a subpoena is designed precisely to protect that right. The ends of justice would be prejudiced if that right was impeded. For this reason the Court must be cautious in exercising its power to set aside a subpoena on the grounds that it constitutes an abuse of process. It is a power which will be exercised in rare cases, but once it is clear that the subpoena in issue in any particular matter constitutes an abuse of process, the Court will not hesitate to say so and to protect both the Court and the parties affected thereby from such abuse. (Sher and Others v Sadowitz 1970 (1) SA 193 (C), S v Matisonn 1981 (3) SA 302 (A).”

Further at page 737;

“The objective of Rule 35 is to enable a litigant to discover documents in the possession or control of another party to the proceedings, whereas the primary objective of Rule 38 is to secure the production of documents from persons who are not necessarily parties in the main proceedings..”

[21] Although counsel for the applicants argued that the subpoena for both the first and second applicants was issued to embarrass and harass the first and second applicant and also to force them into some settlement, I cannot find any basis for such submission. There does not appear any history of the respondents/plaintiff’s conducting the litigation unreasonably. I am also not convinced that the aim of the issuing of the subpoena against the first and second applicants was for the respondents/plaintiff to procure an unwarranted settlement offer. The pre-trial held on the 11^th of March 2019 discussed settlement but at paragraph [10], it was noted that “the parties discussed settlement, but the matter was not settled.” There appears to have been no proposals made in this regard from the respondents/plaintiffs in this regard, nor have they invited any offer from the third applicant/defendant.

[22] In light of what was stated by the learned Mohamed CJ in the case of Beinash supra, the respondents/plaintiff’s are entitled to subpoena the parties, not party to the proceedings, as Rule 35 entitles them to do so. Whether or not such documents can be found or not, the first and second applicants can testify regarding their traceability. Although there is a duplication in the discovery process and the documents requested in the subpoenas, the fact remains that in the rule 35(3) affidavit, Mr Nkabinde stated that the third applicant/ defendant was unable to locate the records of the disciplinary hearings of the Sasol Nitro key account manager and the Sasol Nitro driver.  There is no denial that the documents exist. In the absence of a denial I am not persuaded that these documents are untraceable.

[23] All that is required from the first and second applicants is to say under oath that they have checked the averments made by the respondents/plaintiffs and reply thereto. As was stated by the learned Unterhalter J in the case of Nampak Glass (Pty) Ltd v Vodacom (Pty) Ltd and Others 2019 (1) SA 257 (GJ) at paragraph [19]; “ …a person may have information because they innocently became a means by which a wrong was perpetrated, without in any way committing a criminal act or other civil wrong”. The first and second applicants are the two most senior officials of the holding company. The respondents/plaintiffs have referred this court to board meetings held with senior managers and I can accordingly find no reason why these two officials should not present their evidence, even if it is cryptic. It is for the trial Judge hearing the evidence to determine what weight to attach to it.

[24] If indeed the third applicant’s/defendant’s response to the investigations and disciplinary proceedings occurred after the third applicant’s/defendant’s alleged unlawful conduct in 2013, (as contended by the respondents/plaintiffs), then I cannot understand on what basis the first and the second applicant would have no knowledge about this. As stated by the learned Magid J in the matter of South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) Ltd and Others 2007 (6) SA 628 (D) at paragraph [20]; “…a Court should not lightly exercise its power to set aside a subpoena: ‘The Court must be satisfied, before setting aside a proceeding [ie a subpoena], that it is obviously unsustainable, and this must appear as matter of certainty and not merely a preponderance of probability.’ (Per Corbett J in Sher and Others supra) The use of words like ‘a matter of certainty’ and ‘it is clear’ shows that the onus of proof borne by an applicant in such a case is not an easy one to discharge.”

[25] Even although confirmatory affidavits of the first and second applicant have been filed stating they have no knowledge, I am not persuaded that the applicants have proved that the issue of the subpoenas is an abuse of the process of Court. To curtail the respondents/plaintiffs in their presentation of their case may impede the interests of justice.

 

ORDER

In the premises the following order is made;

The application is dismissed with costs

 

_______________________

D DOSIO

ACTING JUDGE OF THE HIGH COURT

 

Appearances:

On behalf of the Applicants: Adv. D van Zyl

Instructed by: Cliffe Dekker Hofmeyr Inc

On behalf of the respondents: Adv.T.Mafukidze

Instructed by: RG Robinson Attorney

Heard on 7^th May 2019

Judgment handed down on 9^th May 2019

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