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[2010] ZAGPPHC 176
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Sharemax Investments (Pty) Ltd v Basson and Another (27136/10) [2010] ZAGPPHC 176 (4 June 2010)
IN
THE, HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
CASE
NO.: 27136/10
DATE:
04/06/2010
In
the matter between
SHAREMAX
INVESTMENTS
(PTY)LTD
..........................................
Applicant
and
CECILE
OTTILIE
BASSON
................................................................
First
Respondent
THE
SHERIFF OF THE COURT,
KEMPTON
PARK
...............................................................................
Second
Respondent
CORAM:
EBERSOHN AJ
DATE
HEARD 31/5/2010
JUDGMENT
HANDED DOWN ON 4/6/2010
JUDGMENT
EBERSOHN
AJ.
[1]
The main action instituted under case number 2492/2006 by the
plaintiff (the applicant in the matter now before this Court)
against
one Andre Roberts N.O., in his capacity as executor in the deceased
estate of the late Deon Basson, and who was joined
in the matter
after the death of Basson, became settled and an order was made by
agreement (annexure "SM3" to the founding
affidavit in the
mailer before this Court) on the 24th February 2009 pertaining to the
copyright in the book "Public Interest
Warriors" and all
articles authored and co-authored by Basson which pertain directly or
indirectly to the applicant, its directors,
etc.. to the effect that
ownership thereof and therein will be transferred to the plaintiff.
[2]
Believing that the respondent in this matter now before this Court,
the wife of the late Basson, was in possession of material
meant in
the order, annexure "SM3". the applicant (the plaintiff in
matter 2492/2006) brought an ex parte application
against the
respondent and an order was granted, paragraph 1 whereof reads as
follows:
"1.
That the respondent and/or any adult person in charge of the
premises of the respondent at Number 55 Strydom Street,
Birchleigh-North. Kempton Park,grant the Sheriff of the above
Honourable Court, attorney Maud Ferreira and a computer operator
nominated by the applicant access to the said premises for the
purposes of:
1.1
Searching the premises for the purposes of enabling any of those
persons to identify and point out to the Sheriff originals
or copies
or extracts from any articles, notes, letters and/or publications
authored and co-authored In Peon Basson. which pertain
directly or
indirectly, to the Plaintiff, its Directors, its business methods and
all syndications promoted by the Applicant and
its Directors.
1.2
Examining any item for the purpose of identifying it and deciding
whether it is of the nature mentioned in the preceding paragraph.
1.3
Searching the premises for the purpose of finding any computer,
computer disk or hardware of any computer, containing any of
the
items referred to supra."
(Own
accentuation)
[3]
It is common cause that the Sheriff and his party turned up at the
residence of the respondent where the Sheriff attached eight
boxes
containing various documents, publications and printed matter which
the Sheriff later identified in a list, compiled by him,
under 74
numbered headings and under each heading he described the items
falling under the particular heading, together with electronic
items
listed by him over a further seven pages.
[4]
The applicant then brought a further application against the
respondent wherein the relief claimed is set out as follows:
"1.
That the Applicant be entitled to remove and to retain as its sole
possession the documents and/or electronic data, as
listed in
annexure "SMI" currently in possession of the Second
Respondent (the Sheriff).
2.
Costs of the Application only in the event of this application being
opposed by the First Respondent.
3.
Further and/or ancillary- relief."
[5]
Bearing in mind that the Sheriff was to attach only "originals
or copies or extracts from any articles, notes, letters
and/or
publications authored and co-authored by Peon Basson, which pertain
directly or indirectly, to the Plaintiff, its Directors,
its business
methods and all syndications promoted by the Applicant and its
Directors", the first test ("test one")
to be applied
by this Court is to determine from the Sheriffs list which documents
were authored or co-authored by the late Deon
Basson and the second
test ("test two") to be applied to the items positively
identified as having been authored or co-authored
by Deon Basson, is
to determine whether it "pertain directly or indirectly, to the
Plaintiff, its Directors, its business
methods and all syndications
promoted by the Applicant and its Directors."
[6]
This Court studied all the items detailed in annexure "SMI"
and after applying tests one and two, referred to supra,
and based on
the description furnished by the Sheriff it being the only material
the Court could work on, concluded that (only)
the following items
are affected by the court order, annexure "SM2", and may be
retained by the applicant as its property:
6.1
under the heading "Dokumente" (pages 16-21 of the
record), only the item numbered 18 on page 17 of the record;
6.2
under the heading "hiektroniese leers" (pages 22 - 28
of the record), the following items:
i)
on page 22:
none:
ii)
on page 23
:
a)
My Blog - Sharemax Naspers. Money web & 1 Truth -D. Basson
article posted on web 2673/2008 (Sharemax Streetwise);
b)
Annexure 2.1 pdf - Public Warriors - D, Basson Book (obviously
referring 10 the hook "Public Interest Warriors");
c)
Annexure 2.2 pdf - Public Warriors - I). Basson Book (obviously
referring to the book "Public Interest Warriors"):
iii)
on page 24
:
a)
Annexures I Historic article - Sharemax se Oeverblindery D.
Basson
book article;
b)
Annexures 2.1 pdf, 2.2 pdf, 2.3 pdf. 2.4 pdf and 2.5 pdf all
followed by "D.Basson book - Public Warriors".
(obviously
referring to the book "Public Interest Warriors");
c)
erly7 eml - 1). Basson book - Public Warriors, (obviously referring
to the book "Public Interest Warriors").
iv)
on page 25
:
a)
Louise6 eml - E-mail response from Basson regarding answer sent
through to Sharemax:
b)
Louise6 eml - E-mail response from Basson regarding answer sent
through to Sharemax:
v)
on page 26
:
rone:
vi)
on page 27
:
a)
Stephan Fourie 25 November 2005.eml - Deon Basson e-mails and letters
to Sharemax regarding financial statements;
b)
Stephen Bowie 15 August 2006.eml - F.-mail from Deon Basson to Old
Mutual re acquisition of property by SA Retail from Sharemax:
c)
Stephen Bowie 7 August 2006.eml - E-mail from Deon Basson to Old
Mutual re Om and SA Retail;
d)
Chapter D.18.doc. Chapter D.20 doc: Chapter D.2l.doc.Chapter D.22.doc
and Chapter D.24 doc all relating to 1). Basson Book -
Public
Warriors (obviously referring to the book "Public Interest
Warriors").
vii)
on page 28
: none
[7]
The matter not being opposed by the first respondent no order as to
costs will be made against the first respondent.
[8]
The Court according!) makes the following order:
I.
The applicant may retain as its property the following items
detailed in annexure "SM1" to the founding papers:
1.1
under the heading "Dokumente" (pages 16-21 of the record),
only the item numbered 18 on page 17 of the record detailed
as
follows "Berig in Auditing SA - How free is the Media in SA? Dew
Deon Basson rakende Sharemax";
1.2
under the heading "Hiektroniese leers" (pages 22 - 28 of
the record), the following items:
i)
on page 22
: none;
ii)
on page 23
:
a)
My Blog - Sharemax Naspers. Moneyweb & I Truth - D. Basson
article posted on web 26/3/2008 (Sharemax Streetwise);
b)
Annexure 2.1 pdf - Public Warriors - D. Basson Book (obviously
referring to the book "Public Interest Warriors")
c)
Annexure 2.2 pdf - Public Warriors - D. Basson Book (obviously
referring to the book "Public Interest Warriors").
iii)
on page 24
:
a)
Annex4 1 listoric article - Sharemax se Oeverblindery D. Basson
book article;
b)
Annexures 2.1 pdf. 2.2 pdf. 2.3 pdf. 2.4 pdf and 2.5 pdf all followed
by "D.Basson book - Public Warriors", (obviously
referring
to the book "Public Interest Warriors");
c)
erly7 eml - D. Basson book - Public Warriors, obviously referring to
the book "Public Interest Warriors").
iv)
on page 25
:
a)
Louise6 eml - E-mail response from Basson regarding answer sent
through to Sharemax;
b)
Louise6 eml - E-mail response from Basson regarding answer sent
through to Sharemax:
v)
on page 26
: none;
vi)
on page 27
:
a)
Stephan Fourie 25 November 2005.eml - Deon Basson emails and letters
to Sharemax regarding financial statements;
b)
Stephen Bowie 15 August 2006.eml - E-mail from Deon Basson to Old
Mutual re acquisition of property by SA Retail from Sharemax;
c)
Stephen Bowie 7 August 2006.6ml - Email from Deon Basson to Old
Mutual re Om and SA Retail;
d)
Chapter D. 18.doc. Chapter D.20 doc; Chapter D.21 .doc.Chapter
D.22.doc and Chapter D.24 doc all relating to D. Basson Book -
Public
Warriors (Obviously referring to the book "Public Interest
Warriors").
vii)
on page 28
: none.
The
Sheriff must serve a copy of this judgment and this order on the
first respondent, and return on or before 12:00 on the 7th
June 2010
to the first respondent, after having made prior arrangements with
the first respondent to be present and/or represented
there to
receive it. at the premises where the attachment was made by him. the
rest of the documents, publications etc. and electronic
files as is
detailed in annexure "SM1" to the founding papers and are
not referred to in paragraph 1 of this order.
3.
The applicant must pay his own costs of the application.
P.
Z. EBERSOHN
JUDGE
OFTHF HIGHCCH RT
Applicant's
counsel: Adv. C . Sevenster
Applicant's
attorneys: Botha Willemse and Wikenson Attorneys