A company proceeded with a subpoena seeking documents that did not exist.
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A company chasing a R41.6 million claim against the eThekwini Municipality saw its legal bid for documents thrown out of court because they didn’t exist.
The court case stemmed from an erroneous statement at a council meeting, which led to Solbeth Security Protection Services chasing the Auditor-General (AG-SA) for documents it did not have.
The dispute started when Solbeth instituted proceedings against the eThekwini Municipality in December 2021, suing for payment of about R41.7 million for security services allegedly rendered between October 2019 and September 2020.
Solbeth claims the services were provided under a partly oral and partly written agreement between its chief executive and the municipality’s municipal manager.
The court bid against AG-SA has its roots in a council meeting held to address audit findings for the financial period ending 30 June 2024.
The legality of this contract was seemingly raised during that meeting, where AG-SA auditor Nonkuthalo Phephu inadvertently and erroneously confirmed that the contract existed.
The statement was later withdrawn, but Solbeth persisted in trying to secure documents from AG-SA.
In addition, it did not seek the documents from the municipality itself, the court noted.
“In response to questions posed at [30 January 2025 council] meeting, [AG-SA auditor Nonkuthalo Phephu] verbally confirmed the existence of such a contract between Solbeth and the municipality,” the judge wrote.
The court added that “it subsequently emerged that this response was incorrect. AG-SA 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.”
AG-SA withdrew the statement and issued a written apology to both the speaker of the municipality and Solbeth.
Following the meeting, Solbeth’s attorneys attempted to use the Promotion of Access to Information Act (PAIA) to obtain “a copy of all reports, investigations and findings confirming that Solbeth… is providing cyber services to eThekwini municipality”.
They also sought “all documents showing any irregularities reported by the eThekwini municipality accounting officer” relating to Solbeth, as well as “a copy of all documents which you have in order for you to have drawn the conclusion to council that Solbeth has a contract with the eThekwini municipality currently and is providing CCTV surveillance”.
The court found that the PAIA request was not pursued and “in any event, it would not have passed muster, as it was defective and not made in the manner prescribed by PAIA”.
It added that the request should not have been directed to AG-SA in the first place, as it was not a party to the alleged contract.
The documents AG-SA did provide included the municipality’s audit reports from 2019/20 to 2024/25, its letter retracting Phephu’s statement, and confirmation that the municipality’s 2019/20 audit report made no mention of Solbeth.
AG-SA also confirmed that it had no reports confirming the existence of a contract between Solbeth and the municipality, and no documents reflecting irregularities reported by the municipality concerning Solbeth.
Despite this, the company proceeded with a subpoena seeking documents that did not exist.
In awarding costs against Solbeth, the judge said, “while the issue could have been resolved by consent in chambers… Solbeth put the AG-SA to unnecessary legal costs involving an opposed application.”
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