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[2015] ZAGPJHC 56
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Friedshelf 1509 (Pty) Limited t/a RTT Group and Others v Kalianji (2014/28665) [2015] ZAGPJHC 56; 2015 (4) SA 163 (GJ) (16 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case Number: 2014/28665
DATE: 16 FEBRUARY 2015
In the matter between:
FRIEDSHELF 1509 (PTY) LIMITED t/a
RTT GROUP
.............................................
First
Applicant
THOMAS JAMES ADLAM
ERASMUS
...................................................................
Second
Applicant
FREDDY
MOORE
.........................................................................................................
Third
Applicant
NATHANIEL JOHN LESTER
BALLAKISTEIN
......................................................
Forth
Applicant
And
HEMAL SHURESCHANDRA
KALIANJI
.........................................................................
Respondent
JUDGMENT
STRATHERN, AJ
1. This is the extended return day of
an Anton Piller order which was obtained ex parte and in camera by
the applicants on 7 August
2014. The order permitted the applicants
to search the business and residential premises of the respondent,
for the purposes of
identifying and pointing out to the sheriff
certain Evidence, which was defined in the order as comprising:
“originals or copies of any
emails or proof of any other communications between the respondent
and any customers and/or competitors
and/or employees of the first
applicant’s business RTT (“RTT”) and/or to any
members of the public in relation
to RTT, dated after 31 January
2014;
originals or copies of or extracts from
any confidential documents belonging or pertaining to RTT or any
documents containing RTT’s
confidential information, being all
documents (whether in hard copy or electronic form) which are of a
confidential or otherwise
sensitive nature which are in the
respondent’s possession and/or under his control”.
2. The order also provided in the usual
terms for the appointment of supervising attorneys and forensic
experts to search and examine
all electronic storage media in the
possession of the respondent. Neither the applicants nor their
attorneys were to be part of
the search.
3. The order granted is in line with
the type of order that is granted where it is anticipated that the
search will be directed
primarily at electronically stored
information. Clause 3.3 of the order permits the making of copies
and/or forensic images and/or
mirror images and/or digital images of
the hard drives of any digital devices or media located “once
it is determined that
such digital devices or media contain the
Evidence or part thereof”. The relevance of this emphasis will
appear below.
4. Pursuant to the order, the
applicants conducted searches at the respondent’s residential
and business premises.
5. Unlike the order appearing in the
Gauteng Local Division practice manual, the applicants’ order
was subject to a rule nisi,
in terms of which the respondent was
called to show cause on 9 September 2014 as to why the following
orders should not be made:
(a) the identified items in the custody
of the sheriffs which constitute the first applicant’s
confidential information and
in which it has a real or personal
proprietary right shall be returned to the applicants forthwith;
(b) the identified items in the custody
of the sheriffs in which the first applicant does not have a real or
personal proprietary
right shall be retained by the sheriffs pending
the further direction of this court;
(c) the applicants are permitted to:
(i) make copies of the identified items
in the custody of the sheriffs;
(j) take possession of the two forensic
copies of hard drives of any digital devices or media in the custody
of the sheriffs;
for the purposes of instituting the
further proceedings against the respondent foreshadowed in this
application;
(d) the respondent is interdicted and
restrained from disseminating false and defamatory statements about
the applicants.
6. The applicants asked that the costs
of the application be reserved for determination in the further
proceedings to be instituted
as foreshadowed in the application.
7. On 8 September 2014 the respondent
delivered an answering affidavit, which necessitated the extension of
the rule nisi until
10 November 2014 to allow for the delivery of
further papers. The costs of the hearing of 9 September 2014 were
reserved for argument
at the hearing of the application.
The applicant’s case
8. The first applicant owns a business
known as RTT which conducts its business in the logistics industry in
South Africa. The applicant
alleges that it offers a range of
warehousing and distribution solutions which are distinguished by the
use of sophisticated software.
The second, third and fourth
applicants are members of the first applicant’s management
team.
9. The respondent was employed by the
first applicant from 2010 as a software developer and became its
Chief Information Officer.
It is common cause that during his
employment with the first applicant, the respondent, with the help of
the first applicant’s
senior IT (information technology)
manager compiled a list and data base of the first applicant’s
customers, containing their
email addresses. The applicant refers to
this list containing the names and email addresses of 11949 of its
customers as the “Christmas
List”. According to the
applicants the “Christmas List” was password protected,
where the password was known
only to the respondent and one other
employee of the first applicant, one Mr. Van Niekerk.
10. It is also common cause that the
respondent resigned with effect from 31 January 2014. On termination
of his employment the
respondent was subject to a restraint of trade
agreement, precluding him from doing business with certain of the
applicant’s
customers.
11. The applicants allege that
subsequent to the termination of his employment, the respondent had
motive to harm the applicants,
primarily due to the following:
(a) the respondent resigned shortly
before he would have been eligible to receive payment of R11 million
for his stake in the business
of the first applicant and that
consequently he lost this benefit.
(b) the respondent breached his
restraint and was put on notice by the first applicant to abide
therewith.
12. The applicants allege that these
events left the respondent feeling disgruntled and hard done by. They
allege that the respondent
had “miscalculated disastrously”
by leaving the applicant’s employ when he did and deciding to
breach his restraint
undertakings.
13. On 19 July 2014 an anonymous email
from a website known as 5ymail.com was sent to five senior employees
of the first applicant,
several of its key customers and at least two
of its direct competitors. It is not to be disputed that this email
was and is highly
defamatory of the first applicant and its
management team, accusing them of perpetrating a range of fraudulent
and unethical practices
against the first applicant’s customers
and investors. It is also not to be disputed that this email has
caused the applicants
reputational harm and has harmed the
competitive position of the first applicant in the industry.
14. The applicants attribute the email
to the respondent. In doing so, they allege that he had motive to
injure the applicant,
as a result of his losing out on the R11
million payment and that it was necessary for the first applicant to
make demand on him
to adhere to the terms of the restraint of trade
agreement.
15. The applicants allege that the
emails was sent to certain customers on the “Christmas List”,
whose email addresses
were not widely available in the public domain.
The applicants have excluded Mr. Van Niekerk (who they allege was the
only other
person with access to the password providing access to the
Christmas List) as having sent the email and accordingly decided that
the likely culprit was the respondent.
16. The applicants had no direct
evidence linking the respondent to the email and their case against
the respondent is built on
inferential reasoning. They rely on the
timing of the email, which was sent some two weeks after the first
applicant had warned
the first respondent that he was in breach of
his restraint of trade agreement. They reason that the respondent
must have been
the sender, as he is the only person with the
requisite IT skill and he is familiar with information only available
to officials
at the level of senior management within the first
applicant.
17. The applicants allege that the
contents of the anonymous email were “strikingly similar”
to a conversation held
between the respondent and an employee of one
of the first applicant’s subsidiaries, one Mr. Kruger, some
eight months earlier.
18. Based on this reasoning, the
applicants alleged that there was no person with greater reason to
resent and wish harm to the
first applicant than the respondent.
19. Having concluded that the email
must have been written and sent by the respondent, the applicants
then made the usual allegations
in support of an ex parte, in camera
and urgent hearing.
20. The applicants then alleged that
they have clear causes of action in defamation and unlawful
competition against the author
of the offending email (i.e. the
respondent). They also sought an interim interdict, interdicting and
restraining the respondent
from disseminating false and defamatory
statements about the first applicant.
21. The order granted permitted the
applicants to search the business and residential premises of the
respondent for the evidence.
22. On the return day the applicants
did not seek an order for the return of any documents based on a real
or personal proprietary
right. The applicants sought the continued
preservation of the items sealed, an order permitting them to make
copies of the items
in the custody of the sheriffs and confirmation
of the interdicts. The applicants asked that the costs of the opposed
hearing similarly
be reserved for determination in the further
proceedings foreshadowed in the application.
The searches
23. The applicants simultaneously
conducted searches at the business and residential premises of the
respondent.
24. The search at the respondent’s
residential premises took place in the presence of the respondent’s
wife, in the
absence of the respondent. According to the report of
the supervising attorney, the respondent’s wife was
co-operative and
she surrendered her cell phone to the sheriff as
well as a Samsung tablet.
25. The order does not permit the
search or examination of any devices which do not belong to the
respondent. The execution of the
order against the respondent’s
wife in these circumstances is irregular. The sheriff should have
refused to allow any media
belonging to the first respondent’s
wife to be examined and the supervising attorney should have
prevented such examination.
26. It is settled law that serious
irregularities in the execution of an Anton Piller order can render
it susceptible to being discharged
on a reconsideration thereof: (See
Audio Vehicle Systems v Whitfield and Another
2007 (1) SA 434
(C) at
paragraphs 28, 29 and 60).
27. It also appears from the affidavit
of the supervising attorney that various drives, which were copied
and sealed, had not been
identified as containing “the
Evidence” defined in the order. The supervising attorney’s
report states that
certain devices appeared to have contained
information or evidence relating to the first applicant and that it
was on this basis
that the copies were made. This too amounts to an
irregularity in the execution of the order.
28. It also appears that 12 documentary
pages were attached although it is unclear what they are or what they
contain.
29. The inventory compiled by the
sheriff is unhelpful as it does not provide any indication as to what
was copied or seized in
the search and it refers only in general
terms to hard drives and pages. Documents and information are not
identified and there
is absolutely no way of ascertaining from the
inventory whether any of the Evidence was obtained and sealed.
30. As appears from the affidavit of
the supervising attorney overseeing the search at the respondent’s
business premises,
certain searches were performed for keywords and
when certain keywords were found, which appeared in deleted space, an
image of
the hard drive was made. From an examination of the
respondent’s cellphone, there was reference to an email which
appeared
to relate to the first applicant which gave rise to the
copying of the cellphone drive. It does not appear from the
affidavit
of the supervising attorney that the respective drives were
copied only after it had been determined that they contained “the
Evidence or part thereof”, as required by clause 3.3 of the
court order.
31. The inventory of items seized and
sealed at the respondent’s business premises is also of no
assistance in identifying
any of the documents or information found.
It refers in vague and general terms to certain hard disk drives and
a file system
from a cellular phone.
The respondent’s version
32. Whilst the respondent initially
disputed the locus standi of the first applicant he did not persist
with this point. The respondent
disputes that he had any motive to
harm the applicant. He alleges that he terminated his employment in
amicable circumstances and
that subsequent thereto he has rendered
services for the first applicant, which the applicants failed to
disclose in their founding
affidavit. The respondent has also
identified a number of the first applicant’s staff members who
were dismissed and who
would have motive to injure the applicant.
33. The respondent also disputes that
the sender of the anonymous email required any sophisticated IT
skills. He alleges that there
was nothing in the email exclusively
within the knowledge of an ex-employee and that it is more likely
that the information would
have emanated from a current employee. He
states that he is “not the person” who sent the email.
34. In regard to the so-called
“Christmas List” the respondent alleges that he had no
knowledge of such a list. He also
denies that only he and another
employee were privy to the password and states that most senior sales
team members, marketing persons
and executive secretaries had access
to client lists. He states that it would be strange indeed if sales
teams did not have access
to client lists and contact details.
35. The respondent denied that he had
conducted a conversation with Mr Kruger regarding anything that may
be set out in the email.
36. The respondent’s opposition
to the application on the extended return day can be summarised as
follows:
(a) no prima facie case was made out in
the founding affidavit that the respondent was responsible for the
false email and applying
the test regarding disputes of fact and
contrary versions (as set out in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)) the applicant must
fail on the return day. In this regard, the respondent relies on
certain authorities which state that
on the return day, the onus to
be discharged by the applicant is not that of a strong prima facie
case (which is the test at the
initial stage when the Anton Pillar
order is sought) but on a balance of probabilities. (See Frangos v
Corpcapital Limited and
Others
2004 92) SA 643
T at 648 G to 649 C,
which refers to Sun World International v Unifruco Ltd
1998 (3) SA
151(C)
at 162H – 163C). I shall address this aspect later.
(b) the applicants failed to make full
disclosure of all material facts, in particular that the first
applicant sub-contracted the
services of the respondent and his
company on a consultancy basis subsequent to his resignation from the
employment of the first
applicant. The respondent alleges that the
applicants should have disclosed this information, as it would
explain why the respondent
would have documentation on his computer
which related to the first applicant;
(c) the applicant executed the order
outside it scope by inspecting and copying a laptop computer that
belonged to the respondent’s
company, Last Mile Innovations,
and by inspecting the respondent’s wife’s computer,
tablet computer and cellphone and
copying her computer;
(d) Anton Pillar relief is not
appropriate for causes of action based on defamation;
37. the restraint of trade covenants
which the applicants refer to are unenforceable.
Discussion of the various issues
38. Certain of the respondent’s
contentions can be disposed of without protracted debate.
39. I am of the view that the
applicants were not precluded from seeking Anton Piller relief,
simply because the cause of action
is one based primarily on
defamation. The sending of the email also amounts to an unlawful
interference with the first applicant’s
contractual
relationships with its customers, competitors and employees and proof
of the dispatch of the email, and the recipients
thereof would be
relevant in a claim for damages based on such unlawful interference.
It also may ultimately indicate unlawful
competition.
40. I do not believe that this court
reconsidering an Anton Piller application is required to assess the
merits of a restraint of
trade covenant which now appears to be
disputed by the respondent. In any event such an exercise is
irrelevant to the issues in
this case.
41. I have already indicated above that
in my view there were irregularities in the execution of the order.
The search of the tablet
and cell phone belonging to the respondent’s
wife, whilst comprising an irregularity, is not one which is serious
enough
to justify the discharge of the rule nisi.
42. It is also not open for the
respondent to exclude from the search a laptop computer admittedly
used by him simply because he
uses such laptop computer in the
business of a separate legal entity, i.e. “Last Mile
Innovations”.
43. What is of concern is the fact that
various hard drives were copied and sealed in circumstances where
from the reports of the
supervising attorneys it had not first been
determined that the drives contained “the Evidence or part
thereof”.
44. The applicants indicated in the
order formulated by them that they would only copy and image drives
once it had been determined
that the drives contained the Evidence or
part thereof. Having set this as the precondition for copying and
imaging, the applicants
were not permitted to copy and image drives
simply because certain drives “appeared to have information
relevant to the [first
applicant]” as stated by the supervising
attorney who oversaw the search at the respondent’s residence.
The presence
of information relevant to the first applicant does not
equate to the Evidence as defined.
45. Similarly, the reliance of “traces
of certain key words relevant to [the first applicant]” as
occurred in the search
of electronic devices at the respondent’s
business premises is not in accordance with clause 3.3 of the order.
The fact that
search strings may have been identified on the drives
does not equate to the drives containing the evidence.
46. It accordingly appears that copying
of electronic devices took place without it first having been
determined that such devices
contained the Evidence.
47. These irregularities may justify a
discharge of the order. It is however not necessary to make a finding
in this regard.
The onus of proof on a
reconsideration/return day in respect of the causes of action relied
on by the applicants.
48. I now consider the onus of proof
resting on the applicants in respect of the cause of action which
they have against the respondent,
and which they intend to pursue,
both as regards the initial ex parte application and on the return
day thereof.
49. The parties agree (and they are
supported by the authorities) that the onus resting on an applicant
at the hearing of an ex-parte
Anton Piller application is a “clear
case” or an extremely strong prima facie case. (See Anton
Piller KG Manufacturing
Processes and Others
[1975] EWCA Civ 12
;
(1976) 1 All ER 779
,
Roamer Watch Co SA and Another v African Textile distributors
1980
(2) SA 254
(W).)
50. An Anton Pillar search and seizure
is an extremely invasive procedure and there are sound public policy
reasons as to why an
applicant should be required to demonstrate a
strong prima facie case (as opposed to a prima facie case) at the
ex-parte stage
of the application.
51. In Roamer above at 272D Cilliers AJ
stated:
“The applicant should make out a
clear case against the party against whom the order is sought. I
would not necessarily go
so far as ORMROD LJ, who stated that 'an
extremely strong prima facie case' should be made out by the
applicant, but the respondent
should not be exposed to attachment and
removal of his documents, information and goods, on grounds which are
speculative or fail
clearly to make out a case for relief against the
respondent. In particular, the applicant's case should not be
entirely dependent
on such evidence as may or may not be found in the
respondent's possession: that would amount to a mere 'fishing
expedition”
(emphasis added).
52. As to the meaning of a prima facie
case, this test is satisfied where a party adduces evidence of a fact
which if unchallenged
by the other side becomes conclusive proof of
that fact. See Marine & Trade Insurance Co Ltd v Van Der Schyff
1972 (1) SA 26
(A) At 37-38. A strong prima facie case is shown
where the prima facie evidence is particularly persuasive.
53. I am of the view that in their
founding affidavit the applicants did establish a strong prima facie
case. The applicants adduced
evidence that by a process of
elimination, the only person that could have sent the email was the
respondent. This evidence requires
a response from the respondent.
The reasoning and conclusions in the founding affidavit are
persuasive.
54. The question arises as to how to
approach the onus on a return day or a reconsideration of the
application.
55. The Practice Manual does not
require an Anton Piller application to be subject to a return day.
The rights of a respondent subject
to an Anton Pillar application are
protected by the provisions of uniform rules of court 6(8), which
allows respondent to anticipate
the return day and 6(12) (c), which
allows respondent to apply for a reconsideration of that order.
56. In my view there is no distinction
to be drawn between the rehearing of an Anton Pillar application on
the return day where
a rule nisi has been granted, or reconsideration
thereof, in the absence of a rule nisi. The essence of the further
hearing remains
the same, and that is whether the initial order
granted should remain in force pending the discovery process in the
intended action
to which the Anton Piller order relates, or whether
the order should be set aside or discharged.
57. The applicants’ counsel
argued that on the return day, the test in respect of the cause of
action remains that of prima
facie proof. In support of this
submission they relied on The Reclamation Group (Pty) Limited v Smith
and Others
2004 (1) SA 215
(SE), where Froneman J stated (at
221-222);
“The requirement of a prima facie
cause of action, in the sense of an applicant showing 'no more than
that there is evidence,
which, if accepted, will establish a cause of
action' (per Botha JA in Cargo Laden and Lately Laden on Board the MV
Thalassini
Avgi v MV Dimitris
1989 (3) SA 820
(A) at 831H - I) needs
no adaptation at the reconsideration stage. This requirement relates
to an issue which would have to be
adjudicated upon in the forum
hearing the main action to which these proceedings are merely a
precursor (compare the Thalassini
case, above, at 832C, and similar
reasoning in the Bocimar NV case, above, at 581A - B). There is no
need to prejudice that finding
further at this stage”.
58. Both sets of counsel are agreed
that proof of a balance of probabilities is required in respect of
the remaining requirements
for an Anton Piller order, ie:
(a) the respondent has in his
possession specific documents or things that constitute vital
evidence and substantiation of the applicants’
cause of action;
and
(b) there is real and founded
apprehension that evidence might be hidden or destroyed.
59. The respondent’s counsel,
relying on Frangos and Sun World supra argued that the onus to be
discharged by the applicants
on the return day in respect of the
causes of action is on a balance of probabilities and that the
ordinary rules relating to the
proof of facts in motion proceedings
ought to apply.
60. In this regard they referred me to
the following passage in Frangos (at 648 to 649:
However, it appears that when the
matter is opposed on the return day (such as the case in casu), the
test of mere prima facie proof
in disposing of the applicant's onus
may be inappropriate and that the ordinary rules relating to the
proof of facts in motion
proceedings ought to apply. See the apposite
judgment of Van Reenen J in Sun World International Inc v Unifruco
Ltd
1998 (3) SA 151
(C) at 162H - 163C: (T)he evidential criterion
for the above-mentioned three prerequisites is prima facie proof. If
it is borne
in mind that Corbett CJ in Shoba's case confined the
evidential criterion for Anton Piller orders brought ex parte, the
inference
is justified that the concept of prima facie proof was used
in the sense of, as yet, unrefuted evidence which, if accepted,
constitutes
proof of the required facta probanda (see Kalil v Decotex
(Pty) Ltd and Another
1988 (1) SA 943
(A) at 976G - H; Butler v
Banimar Shipping Co SA
1978 (4) SA 753
(SE) at 757E; Cargo Laden and
Lately Laden on Board the MV Thalassini Avgi v
MV Dimitris
1989 (3) SA 820
(A) at
823B; Schmidt Bewysreg 3rd ed at 2). If an identical criterion were
to be applied on the return day of an Anton Piller order
it would
mean that factual issues in the affidavits will have to be resolved
without regard to a respondent's rebutting evidence.
Such an approach
will clearly be inappropriate (cf Kalil v Decotex (Pty) Ltd and
Another (supra at 976I)). And I am accordingly
inclined to the view
that the usual evidential criteria should apply in those
circumstances.' (My emphasis.) See also at 163A.
See also
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) where the usual approach to disputes of facts on the full
papers is set out.” counsel referred me to that passage which
reads as follows:
“However, it appears that when
the matter is opposed on the return day (such as the case in casu),
the test of mere prima
facie truth in disposing of the applicant’s
onus may be inappropriate and that the ordinary rules relating to the
proof of
facts in motion proceedings ought to apply…”
61. Counsel for the respondent argued
that I am bound to follow the reasoning and findings in Frangos and
Sun World unless I find
the decisions are incorrect in this regard.
62. As I shall attempt to justify
below, I intend to depart from such reasoning and findings. I do not
agree that the applicants
must prove their causes of action on a
balance of probabilities on the return day in an Anton Piller
application.
63. The applicants are not seeking
final relief on the return day, as argued by the respondent, and
reliance on the notion that
the confirmation of an order on the
return day amounts to the granting of “final Anton Piller
relief” is in my view
unsound.
64. Basson J correctly stated in
Frangos (at p 647) that “an Anton Piller order is directed at
the preservation of evidence”,
which has been accepted as the
basis for such an order ever since the decision in Shoba v Officer
Commanding, Temporary Police
Camp, Wagendrift Dam, and Another;
Maphanga v Officer Commanding, South African Police Murder and
Robbery Unit, Pietermaritzburg,
and Others
1995 (4) SA 1
(A)
65. An Anton Pillar order accordingly
remains interlocutory in nature and its purpose is to preserve
evidence for use at a subsequent
trial, regardless of whether it is
being considered at the ex parte stage or the return day stage.
Employing analogous reasoning,
when an interim interdict is sought
and obtained ex-parte and is reconsidered by court at the instance of
a respondent after service
of the order, the court hearing the
reconsidered application is still hearing an interim interdict, where
the test remains a prima
facie right open to some doubt. It is only
where the substance of the relief changes on the return day (e.g. a
provisional versus
a final sequestration order) that the onus
changes.
66. In my respectful view, Basson J did
not take into account the fact that an applicant on the
reconsideration or return day of
an Anton Piller order is seeking the
same order originally obtained, i.e. an interlocutory preservation
order. It is apparent that
Basson J accepted the reasoning in Sun
World without further ado.
67. I also must also respectfully
disagree with the reasoning of Van Reenen J in Sun World i.e. “If
an identical criterion
were to be applied on the return day of an
Anton Piller order, it would mean that factual issues in the
affidavits will have to
be resolved without regard to a respondent’s
rebutting evidence”. Whilst Van Reenen J was able to dispose
of the matter
in Sun World without having to decide disputes of fact,
he too in my respectful view did not take into account the fact that
Anton
Piller orders remain interlocutory in nature.
68. In my view the test at the opposed
return day or reconsideration of an Anton Piller order is whether,
after considering the
competing allegations and submissions on the
affidavits, the applicants still make out a strong prima facie case.
In this regard
the court would not be bound to determine the matter
on the basis of facts alleged by the respondent which cannot be
rejected on
paper, as argued in this matter by the respondent’s
counsel.
69. To saddle an applicant with the
burden of proving the cause of action on a balance of probabilities
on the return day of an
Anton Piller hearing would doom most Anton
Piller applications to failure: - All that would then be required of
a respondent in
order to defeat the application on the return day and
obtain the return of the documents seized would be to put up a
version which
cannot be rejected on affidavit. It would also unduly
fetter the discretion of a judge to order the continued seizure of
documents,
even where the competing contentions are unconvincing but
cannot be rejected.
70. I accordingly conclude that the
test for proof of the existence of the cause of action on the return
day or at the reconsideration
stage remains a strong prima facie
case.
The absence of a strong prima facie
case
71. On a consideration of all the
competing allegations and contentions in this matter, I am of the
view that the applicant has
not shown a strong prima facie case. I
say this for amongst others, the following reasons:
(a) the applicants failed to disclose
in their founding papers that subsequent to the termination of the
respondent’s employment
the respondent had done work for the
first applicant which would explain the respondent’s possession
of certain documents
relating to the first applicant. Whilst the
applicants in reply have sought to downplay the extent of the
business relationship
between the respondent and the first applicant,
the mere existence of such a relationship is something which should
have been disclosed
upfront, as this fact militates against the
notion that the respondent had reason to harm the first applicant.
(b) whilst the applicants put up a
convincing case in the founding affidavit that the email could only
have been sent by the respondent,
he has adduced evidence identifying
a number of disgruntled ex-employees who had greater motive to harm
the first applicant. These
persons also had access to the
confidential information enabling them to send the email. In
considering this I also take into account
that the applicants do not
expressly state that the identity of the recipient email addresses
was only available from the Christmas
List. Once it is established
that the email could plausibly have come from persons other than the
respondent, the strength of the
applicant’s strong prima facie
case weakens considerably.
(c) the respondent has stated that in
order to send bulk emails from the anonymous website it would be
necessary for the sender
to be registered. He stated that he was not
so registered and that the applicant had taken no steps to ascertain
whether he was
so registered or not. This aspect was not addressed in
the founding affidavit.
72. The applicants’ counsel in
reply urged me to find that because the respondent had used the
5ymail.com website, this supported
the applicants’ case. The
allegation relied on is that one of the applicants’ computer
operators, one Mr. Jordaan
asked the respondent if he had used the
5ymail.com website, to which the respondent allegedly replied that he
sometimes used it
for business purposes. I have considered this
aspect and take into account that the respondent had disclosed in his
answering affidavit
that he has visited the website in response to
becoming aware of the existence of the false email. I cannot elevate
the tenuous
connection between the respondent and 5ymail.com into a
basis for finding a strong prima facie case that the respondent sent
the
email.
73. As there is no evidence linking the
respondent to the sending of the email, I must guard against
continued seizure of documents
and information where, to allow the
applicant access to it in the hope that there is something there
which incriminates the respondent,
would be to sanction a fishing
expedition.
74. Having found that the applicants
have not shown a strong prima facie case on the return day it is
unnecessary for me to address
the other issues that arose in the
matter.
Discussion
75. There are some aspects however that
I feel duty bound to address.
76. In the draft order the applicants
sought permission to make copies and/or forensic copies and/or mirror
images of electronic
media storage devices. Although the respondent
did not take issue with this type of order, in my view it should be
required of
an applicant to at least make out some case as to why it
is necessary to make a copy of an entire drive as opposed to only a
folder
or a file containing the relevant information. If it is to
guard against subsequent possibilities that the drive has been
tampered
with or altered, or that there may be files hidden or
contained in deleted directories, an applicant should say so. There
can
be no reason for the copying of folders which clearly fall
outside the categories of documents or evidence sought, and which may
be personal to the respondent who is the subject of the search order.
The founding affidavit sets out no facts in support of the
extraordinary relief sought in this regard.
77. A difficulty which arises in this
matter and no doubt in many other matters is the fact that these
days, evidence which is attached
and seized in Anton Piller
applications is primarily contained in electronic storage media
devices. Accordingly when attachments
are made, hard drives are
sealed and kept in the possession of the sheriff. Most often an
applicant has no way of knowing precisely
what is contained on the
hard drive.
78. In Kebble and Others V
Wellesley-Wood and Others2004 (5) SA 274 (W)
2004 (5) SA 274
(W), it
was held that a distinction is to be drawn between documents and
evidence in which the applicant has a real or proprietary
right and
in respect of which it has no such right. Schwartzman J had the
following to say:
[9.1] What the Practice Manual and the
Eiser judgment
(1998 (3) SA 139
(W) overlook is that our
jurisprudence has developed two types of Anton Piller orders. The one
has to do with an attachment where
the applicant seeks the
preservation of documentary evidence in which it has no proprietary
interest (Universal City Studios (supra
at 755A - D)). The other has
to do with an attachment where the applicant seeks to assert a real
or personal right in what is being
attached (Cerebos Food Corporation
Ltd v Diverse Foods SA (Pty) Ltd and Another
1984 (4) SA 149
(T) at
150G - H).
[9.2] The Eiser decision had to do with
Anton Piller relief in which the applicant was asserting a real right
in that it was alleged
that the respondents were making use of its
confidential information for the purpose of the respondents' business
(at 141D - F).
In such a case, where a real right is being asserted,
it is conceivable that there could be a case in which an applicant
may need
to make copies of attached documents for the purpose of
annexing them to its summons or founding affidavit in an action to
establish
the unlawful use of its property. If such right is to be
sought, the reason or need to copy the documents should be set out in
the applicant's founding affidavit. It is unfortunate that the Eiser
judgment does not set out the facts or reasons for the Judge
of first
instance granting an Anton Piller order that entitled the applicant
to what is, in effect, a second bite at the cherry.
[9.3] Proceedings to assert or protect
a real or personal right in what is being attached are a far cry from
proceedings in which
an applicant seeks the preservation of evidence
in which no proprietary right is asserted. This is Anton Piller
relief in its original
form. When a non-proprietary right is
asserted, all that the applicant is entitled to is an order that will
preserve evidence that
would otherwise be lost. After attachment,
such an applicant is not entitled to look at or copy such evidence,
nor is it entitled
to use such evidence to frame a cause of action or
support a cause of action (see Roamer Watch Co SA and Another v
African Textile
Distributors also t/a M K Patel Wholesale Merchants
and Direct H Importers
1980 (2) SA 254
(W) at 271A - E, 273C and
274D - F; Universal City Studios (supra at 755H - J); Hall and
Another v Heyns and Others
1991 (1) SA 381
(C) at 385G - 390C and
391B - 393D; Sun World International Inc v Unifruco Ltd
1998 (3) SA
151
(C) at 171D - 173C). Having stated the general rule in
applications where a non-proprietary right is being asserted, special
circumstances
would have to be set out to justify any departure from
this rule.
79. A difficulty that would have arisen
in this case is that the inventories prepared by the sheriffs
pursuant to the attachments
fail to identify (even in the most
general terms) the nature of the information attached. As was more
prevalent previously, where
a physical document is attached and
listed, the description of such document in an inventory will often
identify it and indicate
whether it demonstrates a proprietary right
in favour of the party at whose instance the attachment is made. This
is not the case
when an inventory only lists an electronic drive
without identifying any of the information contained on it. In this
case the applicants
have no way of showing any entitlement to inspect
any of the documents.
80. In my view the practice needs to be
developed in order to overcome such difficulties and to allow for a
subsequent inspection
by the supervising attorney and the computer
expert, aimed at properly identifying electronically stored
documents.
Conclusion and order
81. As a result of the conclusion
reached by me in this matter it is not necessary for me to deal with
the allegations in support
of an ex parte, in camera and urgent
hearing aspects any further.
82. It follows from the absence of a
strong prima facie case that the applicant is not entitled to the
interdict which forms part
of the rule nisi.
83. The parties did not argue the issue
of the costs reserved on 9 September 2014. These costs are
insignificant and were incurred
to afford the applicants an
opportunity to reply, and to set time periods for the preparation of
heads of argument. I see no reason
why they should not follow the
result.
84. The respondent’s counsel
urged me to dismiss the application with punitive costs. In the
exercise of my discretion I do
not intend awarding punitive costs,
notwithstanding the inherent flaws in the applicants’ case and
the irregularities in
the execution of the order.
85. I make the following order.
(a) The extended rule nisi is
discharged;
(b) The applicants are ordered to
restore to the respondent all documents and data seized from him;
(iii) The applicants are to pay the
costs occasioned by the respondent’s opposition to the
application, including the reserved
costs of the hearing on 9
September 2014, such costs to include the costs consequent upon the
employment of two counsel.
STRATHERN AJ
Applicants’ Counsel:
Christopher Whitcutt SC
Salim Ebrahim
Applicant’s Attorneys: Webber
Wentzel
Respondent’s Counsel: George
Kairinos SC
Brook Stevens
Respondent’s Attorneys:
Jurgens Bekker
Date of hearing: 14 November 2014
Date of Judgment: 16 February 2015