The Pietermaritzburg high court has set aside a subpoena issued against the Auditor-General of South Africa (Agsa), saying it was not issued for a genuine or lawful purpose.
The court also labelled the move by security firm Solbeth Security Protection Services an abuse of process based on a factual error that has since been corrected.
The background to the dispute lies in action proceedings instituted by Solbeth against the eThekwini municipality in December 2021 for payment of about R41.6m allegedly due for security services rendered between October 2019 and September 2020.
Solbeth alleged it rendered the services after a partly oral, partly written agreement concluded between its CEO Siyabonga Xulu and eThekwini municipal manager Sipho Nzuza.
In January 2025, a council meeting of the municipality was convened to address Agsa audit findings for the financial period ending June 30 2024. During that meeting, a senior manager employed at Agsa, responding to questions relating to a CCTV services contract allegedly concluded between Solbeth and the municipality, verbally confirmed the existence of such a contract.
However, it later emerged that this response was incorrect.
Agsa later clarified that the statement had not been based on any audit finding or review of contractual documentation, but rather on a general understanding of cybersecurity and ICT risk management.
Despite a formal written apology and a retraction sent to the speaker of the council, Solbeth moved to subpoena Agsa for all documents “confirming” the contract.
Solbeth’s attorneys procured the issue of a subpoena by the registrar of the Pietermaritzburg high court in February 2025.
After the subpoena was served, Agsa communicated with Solbeth’s attorneys during a meeting, reiterating that the statement made at the council meeting was incorrect and had been withdrawn.
During that meeting Solbeth’s attorneys requested additional information, including copies of certain municipal audit reports and a confirmation that the erroneous statement had been formally withdrawn.
Agsa obliged and provided:
- The municipality’s audit reports from 2019/2020 to 2024/2025.
- Agsa’s letter to the council dated February 27 2025, retracting the erroneous answer given at the council meeting; and
- A confirmation that the municipality’s audit report of 2019/2020 did not make mention of Solbeth.
Agsa also confirmed it was not in possession of any reports confirming the existence of a contract between Solbeth and the municipality.
“Despite the above clarification, Solbeth refused to withdraw the subpoena, leading to Agsa instructing its attorneys to bring this application,” said judge Thina Siwendu said in a judgment on April 1.
The principal contention by Agsa was that neither it nor the authorised auditors in its employ may be compelled, by way of a subpoena, to disclose information obtained in the course of an audit conducted under the Public Audit Act
Siwendu said Solbeth did not dispute Agsa’s contention that the information sought did not exist.
She said Solbeth’s defence of mootness would mean the subpoena had no practical effect or result between the parties.
“That is erroneous. Solbeth’s assertion that it does not seek to enforce the subpoena is no answer to the relief sought by (Agsa). Accordingly, a live dispute exists as the subpoena is valid until cancelled and set aside or withdrawn,” Siwendu said.
She said the submission that Agsa complied with the subpoena and/or abandoned its right to seek a cancellation of the subpoena was misleading and was not borne out by the facts.
Siwendu said the subpoena served no legitimate purpose but operated as an instrument to compel Agsa in circumstances where the reason for its issue did not exist.
“The subpoena was not issued for a bona fide or lawful purpose. Instead, it was employed as a mechanism to compel Agsa to disclose information protected under the Public Audit Act, Solbeth having been expressly informed that such information was not in Agsa’s possession.”
She said where the court procedures were invoked for impermissible purposes, the court was not only empowered, but obliged, to exercise its inherent jurisdiction to prevent an abuse of its process and the proper administration of justice.
She ordered Solbeth to pay Agsa’s costs.
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