About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 199
|
|
Mayet v Laher and Others (46614/2013) [2014] ZAGPJHC 199 (2 July 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 46614/2013
DATE:
02 JULY 2014
In the matter
between:
ABDULHAY MOHAMED
MAYET
....................................................
Applicant
And
HAROON YUSUF
LAHER
.....................................................
First
Respondent
BERNARD S
FOURIE
.......................................................
Second
Respondent
BVZ ATTORNEYS
Aka BEZUIDENHOUT
VAN ZYL INC
.................................
Third
Respondent
CITIBANK
N.A
..................................................................
Fourth
Respondent
J U
D G M E N T
MPHAHLELE, J:
[1] On 09 January
2014 the court granted the anton piller order against all four
respondents. The order granted runs to six pages.
The order empowered
the sheriff and the applicant’s supervising attorney to search
the premises of the respondents to execute
the terms of the order.
The order provides for the search of office files, contemporaneous
notes made by the respondents in any
diary in matters relating to the
applicant and the respondents as well as the original settlement
agreement between the applicant
and the fourth respondent.
[2] The order made
provision for a rule nisi returnable on Tuesday, 04 February 2014.
The order does not disclose or identify what
relief the applicant
sought to make final on the return date but nevertheless directs the
applicant to institute legal proceedings
within three weeks from the
date of the order and if the applicant fails in the aforementioned
regard either party may, not on
less than 96 hours’ notice to
the other party apply to this court for an order determining what
must be done about the removed
items and copies thereof.
[3] The application
was never set down for a hearing on the return date and there was no
explanation for such a failure. On 19
May 2014 the first respondent
sought an order setting aside the order granted on 09 January 2014
together with ancillary relief.
On the date of the hearing of this
application the
applicant requested the court to confirm the rule that applicant is
entitled to be placed in possession of the original
settlement
agreement.
[4] The applicant
for an anton piller order directed at the preservation of evidence
obtained without notice to the respondent,
must prima facie establish
the following:-
a) that he has a
cause of action against the respondent which he intends to pursue;
b) that the
respondent has in his possession specific (and specified) documents
or things which constitutes vital evidence in substantiation
of the
applicant’s cause of action (but in respect of which the
applicant cannot claim a real or personal right); and
c) that there is a
real and well-founded apprehension that this evidence may be hidden
or destroyed or in some manner be spirited
away by the time the case
comes to trial or to the stage of discovery.
[5] I will now
consider whether or not the applicant has established these elements.
1. The cause of
action which the applicant intends to pursue against the respondents
[6] The applicant’s
claim is based upon the first respondent’s breach of his
mandate in that he (the first respondent)
was negligent in the
performance of his duties. The first respondent acted as an attorney
for the applicant and the Mayet group
(the plaintiffs) in a damages
claim against Citibank N.A., the fourth respondent. Citibank was
represented by the second respondent
at the time a director of the
third respondent. The parties concluded a settlement agreement which
was eventually made an order
of court. In terms of the settlement
agreement, the fourth respondent undertook to pay the applicant an
amount of R25 000-00 in
full and final settlement of all claims,
including interest and legal costs. It was further agreed that the
original settlement
agreement would be retained by the third
respondent, the then attorneys for the fourth respondent and the
first respondent was
authorised to retain only one copy of the
agreement. It is this settlement agreement and the contemporaneous
file notes made by
the respondents in matters relating to the
applicant and the respondents which form the subject matter of this
application. The
applicant maintains that the first respondent misled
him when signing the settlement agreement.
[7] The damages
action against the first respondent was set down for hearing from 30
July 2013 and on 31 July 2013, as per the request
of the plaintiff’s
(who is the applicant in this matter) counsel, Claassen J made the
following order:-
a) The plaintiffs
withdraw the action
b) The plaintiffs
tender the defendant’s (the first respondent in this matter)
taxed or agreed party and party costs up to
today including the costs
of two counsels on the high court scale, jointly and severally.
[8] The applicant
settled the taxed bill of costs on 31 January 2014 in compliance with
the court order. The applicant stated that
the original settlement
agreement will provide evidence against the respondents in the
application for leave to appeal Claassen
J’s order. The claim
before Claassen J was instituted against the first respondent only,
therefore the second, third and
fourth respondents could not have
been part of the application for leave to appeal proceedings.
Claassen J dismissed the application
for leave to appeal on 13 March
2014. The applicant submitted that the applicant still has an option
to either petition the Supreme
Court of Appeal or bring an
application for rescission of Claassen J’s order.
2. The respondents
are in possession of vital information in substantiation of the
applicant’s claim
[9] The document to
be preserved is the original settlement agreement between the
applicant and Citibank (the fourth respondent).
On reading of the
particulars of claim in the damages claim before Claassen J, the
claim was
not based on issues
relating to the contents of the deed of settlement per se, as alleged
by the applicant. The claim was for damages
in respect of legal fees
incurred as a result of the first respondent’s alleged breach
of mandate. A further claim was for
damages paid by the applicant in
settlement of a defamation claim in favour of the second respondent.
The deed of settlement was
not necessary in proving the applicant’s
claim.
3. Apprehension that
the document may be destroyed
[10] As already
stated in paragraph 6 supra, it was agreed between the applicant and
Citibank that the original settlement agreement
will be retained by
the third respondent. The applicant’s attorneys did inspect the
settlement agreement at the offices of
the third respondent on 29
July 2013. Further the applicant was served with a copy of the
settlement agreement on 29 July 2013,
a day prior to the commencement
of the trial before Claassen J. The applicant does not challenge the
veracity of the settlement
agreement in its possession. The applicant
has failed to show the requisite of apprehension, there is no reason
advanced why the
applicant should fear that the document would be
destroyed.
[11] The applicant
conceded that its previous legal representatives have failed to
follow due process to obtain the document sought
before the
commencement of the
trial before Claassen J. But he maintained that, the legal
representative’s failure does not disentitle
him to obtain the
document as sought in the present application. This argument cannot
be correct. Anton piller orders are for the
preservation of evidence
and not a substitute for possessory or proprietary claims. (See
memory Institute SA cc t/a SA Memory Institute
v Hansen and Others
2004 (2) SA 630
(SCA) at 633)
[13] The applicant
has clearly failed to meet the requirements for an anton piller
order.
[14] Finally, an ex
parte application by its very nature requires the utmost good faith
on the part of the applicant. Of importance,
the applicant failed to
disclose that the claim before Claassen J was against the first
respondent only. Further he failed to disclose
that he withdrew the
claim before Claassen J and tendered the costs. These are crucial
facts that might reasonably have influenced
the court in whether or
not to grant the interim relief.
[15] In the
circumstances, the application stands to be dismissed.
[25] I accordingly
make the following order:
1. The anton piller
dated 09 January 2014 is set aside;
2. The applicant is
liable for the costs of this application and those of the
counter-application, including the costs consequent
upon the
employment of two counsels.
S S MPHAHLELE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Counsel for the
Applicant: Mr. J. Bauer
Instructed by:
Symes Inc.
Counsel for
Respondent: Mr. John Suttner, SC
Ms.
Paola Cirone
Instructed by:
Bowman Gilfillan Inc.
Date of hearing:
19 May 2014
Date of judgment:
02 July 2014