The Gauteng Division of the High Court of South Africa in Pretoria postponed an application to set aside a subpoena that was issued by the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State (the "Zondo Commission").

Auswell Mashaba instituted an application against the Zondo Commission and cited the Secretary of the Commission and the Honourable Mr Justice Zondo as respondents. Mr Mashaba contended that the subpoena did not contain all the necessary information and did not sufficiently draw his attention to his rights and obligations. The application was set down for hearing on the unopposed roll of 14 June 2022. Acting Judge De Vos had to consider whether the respondents were aware of the relief being sought against them and were provided with an adequate opportunity to oppose the relief being claimed.

The court highlighted that Rule 6(5)(b)(iii) of the Uniform Rules of Court requires that the notice of motion must set out a date on which the application would be moved, if the application was not going to be opposed. The notice of motion filed on behalf of Mr Mashaba did not provide a stated date on which the application for relief would be moved.

The Zondo Commission issued the subpoena on 9 February 2021 and Mr Mashaba was required to appear before the Commission on 24 February 2021. Mr Mashaba did not comply with the subpoena. The consequence of such a failure to attend is a possible criminal charge. Even though Mr Mashaba had not been charged criminally, it is the possible threat of a criminal charge that motivated the launch of the application to review and set aside the subpoena.

The court pointed out that the notice of motion did not provide the respondents with notice of the date when the matter would be proceeding and the effect of that was that the respondents would not know when their matter would be heard in open court.

Mr Mashaba had generated two notices of set down, but they did not come to the attention of the respondents.

The court quoted with approval the judgment of Ms Justice Fischer in Mashaba v The Judicial Commission of Inquiry Into Allegations of State Capture, Corruption and Fraud In The Public Sector, Including Organs of State and Others handed down on 26 June 2022. In this matter, the court was dealing with a notice of motion that did not contain a stated day for the hearing. The court held as follows:

"This omission is, without more, fatal to the application and it should not be entertained. Indeed the registrar is not empowered to issue such an application in the absence of a stated date for appearance on the notice of motion. This notwithstanding, the unopposed motion court is often faced with such inchoate process. The notice of motion is then followed by a notice of set down which is apparently meant to cure this illegality. What is envisaged is that a respondent may be faced with notice of process but given no means to appear and deal with it."

Acting Judge De Vos highlighted that Rule 6(5)(b)(iii) ensures that a respondent is given notice of when relief is being sought against them. The need to provide notice is not a formalistic application of procedural rules, but rather the rule (whilst procedural in nature) protects a fundamental principle of fairness. A respondent must be given an opportunity to be heard before a court grants any relief against it. Since Mr Mashaba did not provide the respondents with adequate notice of the day on which the application would be heard, the court was not prepared to determine the application to review and set aside the subpoena. The court found that it made no difference that the respondents did not respond in any way to the notice of motion.

The court also found that Mr Mashaba should have delivered a notice in terms of Rule 16A because the relief claimed engaged Section 34 of the Constitution (the right to fair administrative action). The court therefore held that the application raised a constitutional issue. In addition, if the subpoena is reviewed and set aside, it could potentially have consequences for other subpoenas issued by the Commission. Therefore, the court found that the matter was of public importance and a notice in terms of Rule 16A ought to have been filed.

The court was also concerned with the time lapse between February 2021 when the subpoena had been issued and the institution of the review application in January 2022, but the court did not have to make a final determination on that issue. Acting Judge De Vos postponed Mr Mashaba's application in order to allow him to comply with Rules 6(5)(b)(iii) and Rule 16A of the Uniform Rules of Court.

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