Luxor Paints (Pty) Ltd v Gecko Coating SA (Pty) Ltd and Others (5809/2022) [2023] ZAFSHC 281 (14 July 2023)

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[2023] ZAFSHC 281
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Luxor Paints (Pty) Ltd v Gecko Coating SA (Pty) Ltd and Others (5809/2022) [2023] ZAFSHC 281 (14 July 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE PROVINCIAL
DIVISION
Not
Reportable
Case no. 5809/2022
In the matter between:
LUXOR
PAINTS (PTY) LTD
Applicant
and
GECKO
COATING SA (PTY) LTD
First
Respondent
CHEMFARBEN
INTERNATIONAL (PTY) LTD
Second
Respondent
THEUNES
POTGIETER
Third
Respondent
Coram:
Opperman, J
Heard:
1 June 2023
Delivered:
14 July 2023. This judgment was handed
down electronically by circulation to the parties’ legal
representatives
via
email and release to SAFLII on 14 July 2023. The date and time of
hand-down is deemed to be 15h00 on 14 July 2023
Summary:
Anton Piller order – confirmation
of rule
nisi –
condonation
for late filing of replying affidavit – costs order in Anton
Piller
ORDER
It is ordered that:
1.
Condonation is granted for the late filing
of the Replying Affidavit by the applicant; each party to pay their
own costs in the
application.
2.
The order dated 23 November 2022 is
confirmed.
3.
In terms of paragraph 24 of the order, the
identified items in the custody of the Sheriff shall be retained by
the Sheriff pending
the further direction of this Court and the
applicant is permitted to:
i.
Make copies of the
items in the custody of the Sheriff; and
ii.
t
ake possession of the two
forensic copies of the hard drives of any digital devices or media in
the custody of the Sheriff for the
purposes of instituting the
further proceedings against the respondents foreshadowed in this
application.
4.
The costs of this application are reserved
for adjudication in the main action foreshadowed in this application.
JUDGMENT
THE ANTON PILLER
APPLICATION
[1]
The case centers on the adjudication of an
Anton Piller order. As the litigation surrounding the Anton Piller
order evolved the
issues of an application for condonation for the
late filing of a Replying Affidavit by the applicant and the costs of
the case;
that is for the condonation application and the Anton
Piller application, came to the fore.
[2]
It
is crucial to understand the nature and law of an Anton Piller
application and order as backdrop to the reading and understanding
of
the judgment. After many years and much litigation, it is still every
so often misconceived. The phenomenon in our common law,
that is the
Anton Piller order, is by now trite law in South Africa. The law is
of British origin
[1]
but was
developed to comply with the South African Rule of Law.
[3]
One of the earliest reported judgments is
that of Cilliers, AJ on 6 November 1979 in
Roamer
Watch Co SA and another v African Textile Distributors also t/a M K
Patel Wholesale Merchants and Direct Importers
1980
(2) SA 254
(W) and then followed what Erasmus, HJ referred to as the
“
The Anton Piller Muddle
”
in
(1991) 108 SALJ 379.
The courts struggled to capture the nature of
the relief and the admissibility thereof in the South African law.
All the controversy
over the years could have been prevented if only
it was realized that this common law process in law was developed
within the inherent
powers of the court to do so and has a purpose to
serve. As Cilliers, AJ stated in 1979 on page 271(A-D) in the Roamer
Watch -
case; and that is still the law:
I would suggest that,
always keeping in mind that this type of relief is aimed at the
preservation of evidence, a plaintiff obtaining
such an
ex parte
order, should not be given relief beyond that which is necessary to
preserve the evidence relevant to his case, and should not
in effect
be afforded an opportunity to study and copy documents and other
information which may contain trade secrets in respect
of which it
may ultimately appear that he is not entitled.
But, in principle, the
Court should, in my view, be extremely circumspect about allowing the
copying of documents and information.
It seems to me that, once a
plaintiff has been able to identify documents, other information and
articles which he seeks to have
preserved for their evidential value,
and such documents, information and articles have been removed and
placed in safe custody
until all parties can be heard, the plaintiff
should not be given more access to the defendant's documents,
information and articles
than he can elicit by the ordinary rules of
discovery or
other relief which he can obtain by the exercise of
the inherent powers of the Court after hearing all parties
. I
shall hereinafter make certain suggestions as to the kind of
safeguards which may appropriately be applied in this type of order.

(My emphasis)
The safeguards stipulated
then are still applicable and relevant in 2023.
[4]
The attitude to the costs order in the same
case likewise still prevails:
6. The costs of this
application are reserved for decision in the action referred to in
paras 1 and 3 (b) above; provided that,
should the applicants fail to
institute such action within four weeks from the date hereof, either
party may apply to this Court,
on notice to the other parties, for an
order as to the costs of this application.
[5]
In
Universal
Studios Inc v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) on page 754 at E to G:
It is probably correct,
as so cogently reasoned by the Court in the Cerebos Food case
supra
,
that there is no authority for such a procedure in our common law.
But, of course, the remedies devised in the Anton Piller case
supra
and other subsequent cases for the preservation of evidence are
essentially modern legal remedies devised to cater for modern
problems in the prosecution of commercial suits
. (Emphasis added)
[6]
The
Constitutional decree is served with safeguards incorporated into the
order to be observed throughout the granting and the execution
of the
order.
[2]
The application of the
Constitutional demand stipulated in the Bill of Rights gives credence
to the law.
[7]
The
development of our law is also related to the expansion of the
property susceptible to the search and seizure. The Supreme Court
of
Appeal recognized that information is to be protected if it possesses
the qualities of confidentiality and the applicant for
the order can
prove at least a quasi - proprietary or legal interest in the
information to be protected.
[3]
[8]
The
milieu of an Anton Piller order is extraordinary and unique. An Anton
Piller order is an interlocutory, multi-layered,
sui-generis
,
judge-made and constitutionally complicated remedy in our law. It has
been described as “a Draconian form of relief”
which
“should be granted only under exceptional circumstances”.
Its use has been labelled as an example of the outer
extreme of
judicial power.
[4]
[9]
The
judicial ethos wherein matters of this nature must be considered was
recently aptly engrained in our law in
Cratos
Capital (Pty) Ltd v Zimri Investments CC and another
(20968/2021)
[2022] ZAWCHC 87
(24 May 2022):
[5]
[17]
It has been acknowledged by the courts in this country, and also by
those in other free and open societies, that the Anton
Piller
procedure, which is a judge-made remedy – although it has in
more recent times been statutorily regulated in many
countries –
has draconian and extremely invasive consequences for those on the
receiving end of the search and seizure orders
that are made under
it. Attention is often drawn in that regard to the description of it
by Hoffmann J (later Lord Hoffmann), in
Lock
International plc v Beswick
[1989]
3 All ER 373
(Ch),
as an instance of ‘the absolute extremity of the court’s
powers’. It has nevertheless withstood scrutiny
as a procedure
that is a justifiable impingement on the basic human rights of
privacy and dignity. In other words, in the South
African
constitutional context, the procedure has passed the test of
justifiability stipulated in s 36(1) of the Constitution.
But
that has been so only because of the body of law established in the
judgments that make it clear that courts will apply strict

limitations to ensure that the procedure is used only when absolutely
necessary and, even then, strictly to the extent that the
case in
issue vitally requires.
[18]
It is in that connection that the requirement of specificity
identified by the learned chief justice in
Shoba supra
,
fulfils a vital function. I had occasion to discuss this in
Mathias
International Ltd and another v Baillache and others
[2010]
ZAWCHC 68
(8
March
2010),
2015 (2) SA 357
(WCC),
where, in para 20, I noted that ‘(t)he impermissibility of the
use of the procedure to enable searches to be undertaken
to look for
evidence to identify or found a case, as distinct from the
preservation of evidence for use in an already identified
claim, is
fundamental. The strict limitation of the use of the procedure to the
preservation of evidence, as distinct from, say,
a search for
evidence (the so-called fishing expedition), is a feature that is
essential to the legality of the procedure within
the requirements of
s 36(1) of the Constitution. An application for authority to search
for evidence in the nature of a fishing
expedition should flounder at
the first hurdle for want of compliance with the specificity
requirement mentioned as the second
of the three essential
requirements for the grant of an
Anton
Piller
order
in
Shoba
,
…. The specificity requirement is a material factor in
accepting that the limitation of basic rights inherent in the
Anton
Piller
procedure
is reasonable and justifiable as required by s 36(1) of the
Constitution.’
[10]
Important about the Anton Piller order is,
inter alia
,
the following:
1.
As
Harms
[6]
with reference to case
law stated: “The order is, however, sometimes attached to a
rule
nisi
but whereas a rule
nisi
operating
as an interim interdict usually seeks to maintain the
status
quo ante
,
the Anton Piller order gives instant relief,
subject
to the possibility of a later variation or discharge of the order
.”
[7]
(Emphasis added)
2.
The investigation by the court on the
return date is two pronged: i. Whether a proper case for Anton Piller
relief in the first
instance was established.
It
is a reconsideration of the relief in the first instance with the
luxury of hindsight and the facts that followed the execution
of the
order
. The court sitting on the return
date, with all the evidence here and now at its disposal and in
retrospection, must decide whether
the first stage of the order was
just and equitable. Further; ii. Whether the order was lawfully
executed and the material of such
contents and substance, to justify
the handing over of the information obtained to the applicant to be
used in the main action.
Were any basic constitutional rights
infringed during the application for the order, the execution of the
order and the obtaining
of the evidence and is the information seized
relevant to the main action?
3.
The process must, as a whole, be measured
with the fundamentals in section 36 of the Constitution, 1996. The
statement of the applicant
in casu
in paragraph 3 of their Heads of Argument is thus not correct in
that:
Information identified in
the application and the Order was located and retained by the Sheriff
in the course of the execution of
the Order. The further events
contemplated in the order have occurred and the court is only
concerned at this stage with the confirmation
of the rule
nisi
in paragraph 24 of the Order and the opposition thereto. Paragraph 24
is an order for the handing over of the material by the Sheriff
to
the applicant.
4.
The order is not a form of early discovery
or discovery at all. The point of departure under South African law
is that every person
should be afforded the opportunity to respond to
evidence tendered against them; the so-called
audi
alteram partem rule
. Discovery will be
a reaction to evidence. The Anton Piller order, to protect the
evidence, does the opposite. The respondent is
deprived of the
audi
alteram partem
constitutional right
with an
ex parte
,
in camera
and urgent order. There is also a different procedural process
attached to discovery.
5.
Harms
[8]
correctly found, with reference to case law, that the Anton Piller
order does not permit delivery-up. Delivery-up is a statutory
remedy
found in the Patents, Copyright and Trade Marks Acts. It provides
final relief; after a defendant has been found to be infringing
the
law it commands him to deliver up the infringing articles. An Anton
Piller order, on the other hand, is an interim order that
aims to
preserve evidence. It places the applicant in the position to
preserve and protect his right to fair litigation in that
the
respondent is prevented from destroying evidence. The evidence is to
be used in the main action that will follow. Delivery-up
is re-active
and Anton Piller relief pro-active.
6.
A
prima facie
personal or real right to a document or material may not be used as
the proverbial smoking gun in legal proceedings launched by
the
applicant. The purpose of the remedy is not to establish a case
against another (i.e., a fishing expedition), but to preserve
the
evidence to substantiate an already existing case. This will also, as
an inevitable consequence, prevent the alleged illegal
use of the
information pending the finalization of the main action.
Courts
must be vigilant that interdicts that might be better suited as
remedies to the facts of a case, are not warped into Anton
Piller
applications.
7.
The essential requirements for obtaining an
Anton Piller order have been codified in our law in the case of
Universal Studios Inc v Network Video
(Pty)
Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) and as repeated in
Shoba
v Officer Commanding Temporary Police Camp, Wagendrift Dam and
another; Maphanga v Officer Commanding, South Africa Police
Murder
and Robbery Unit, Pietermaritzburg, and others
[1995] ZASCA 49
,
[1995] 2 All SA 300
(SCA),
1995 (4) SA 1
(A). The
prima facie
requirements for an applicant’s founding papers (to be brought
on an
ex parte
basis and
in camera
)
for an Anton Piller application are:
i.
A valid cause of action must exist against
the respondent(s) and the intention exists to pursue such cause of
action;
ii.
the respondent(s) have possession of the
documents or articles that are vital evidence in substantiation of
the applicant’s
cause of action; and
iii.
there is a real and well-founded
apprehension that the evidence would be hidden, destroyed or
“spirited away” by the
time discovery will take place or
the case comes to trial.
8.
There must be specificity of the
quasi - proprietary or legal interest in the
information or right to be protected. In
Waste-Tech
(Pty) Ltd v Wade Refuse (Pty) Ltd
1993
(1) SA 833
(W), the court confirmed that the applicant in a search
and seizure application must:
i.
Identify the document or article which is
to be attached; and
ii.
establish (at least
prima
facie
) their right to the document or
article, that is, “his right to ownership or right to delivery
or statutory intellectual
property right in the document”. The
South African courts have therefore no jurisdiction to grant an order
for the attachment
of the property of another where no right of the
applicant therein exists, merely for the purpose of its production as
evidence.
9.
Added
to the above is that the illegal execution of the order may cause the
whole of the order to be set aside on the return date
and the
dismissal of any further relief. Courts should be careful to ensure
that the Anton Piller procedure is not used indiscriminately
or as an
instrument to harass defendants and litigate them into submission by
lawfare.
[9]
The court also has
the discretion to order any alternative relief it deems fit in the
circumstances of the case to protect the
constitutional legality and
against prejudice.
10.
Where
the execution of the order is seriously flawed the court ought to
show its displeasure by making a punitive costs order and/or
by
setting the provisional order aside (even if the respondent did not
suffer harm). On the other hand, where a respondent does
not comply
with an Anton Piller order the sanction for failure is contempt of
court.
[10]
11.
The hearing of an Anton Piller case is not
a preliminary mini trial of the merits of the main action.
12.
The Anton Piller order, being an
extraordinary order, resulted in jurisprudence that developed to
order costs to, as a rule, be
reserved for determination in the
further proceedings. Costs in the Anton Piller application is then at
the mercy of the outcome
of the main action.
13.
The
test is not according to the Plascon Evans - dictum. There was much
debate about the onus in the past.
[11]
14.
Harms
said it best with reference to case law:
[12]
The court has a
discretion whether or not to grant an Anton Piller order and if it
does, on what terms. In exercising its discretion,
the court will
have regard to the cogency of the case made out by the applicant and,
with reference to the requisites for the order,
must weigh the
potential harm that will be suffered by the respondent if the order
is granted against the potential harm to the
applicant if the relief
is withheld. The order granted should not be more onerous than is
necessary to protect the applicant’s
interests.
Anton-Piller-type orders are, as such, neither contrary to public
policy nor unconstitutional. An order may, however,
infringe basic
rights protected by the Bill of Rights. Any order must constitute a
reasonable and justifiable limitation on particularly
the right of
privacy, which requires that the principle of proportionality be
applied.
15.
The case of
Cheickhart
General Sales (Pty) Ltd v B & W Autobody Experts CC T/A Autobody
Experts (UM 156/2020)
[2021] ZANWHC 22
(18 August 2021)
gave the preferable solution:
[22] In the more recent
judgment of
Interpark South Africa (Pty) Limited v Acuity on Point
Solutions (Pty) Limited and others
(A5073/2018) [2021] ZAGPJHC 15
(2 February 2021) at paragraph [4], where a Full Court decision,
penned by Adams J, in my view concisely
stated the correct approach
to adopt on the return date of a rule
nisi
:
“
[4]
The question to be decided in this appeal is whether the court
a
quo
had, on the return day of the rule
nisi
,
correctly applied the applicable legal principles as enunciated
inter
alia
in
Shoba
v Officer Commanding Temporary Police Camp, Wagendrift Dam and
another
1995 (4) SA 1
(A) and
Non-Detonating Solutions (Pty) Ltd v
Dune
2016 (3) SA 445
(SCA). The
question is whether the appellant, which was the applicant in the
court
a quo
,
had proven on the return day that at the time of applying for the
Anton Piller preservation order: (1) it had a
prima
facie
cause of action; (2
)
prima facie
the respondents were in possession of documents important to that
cause of action; and (3) it (the appellant) had a
reasonable
apprehension
that the respondents might
not discharge its duty to make full discovery. If those requirements
had been met in the appellant’s
application, and provided that
there were no other grounds to set aside the order, such as serious
flaws in its execution, the
preservation order should have been
allowed to stand.” (My emphasis)
16.
The above test flows straight into the
condonation application for the late filing of the Replying Affidavit
in casu
.
[11]
The adjudication of the condonation
application for the late filing of the Replying Affidavit by the
applicant must be done with
an eye on the
sui
generis
test described in Anton Piller
applications. New information on the return date of the order is
crucial and inevitable. I revert
to give some background on the
evolvement of the litigation in the case.
THE EVOLVEMENT OF
THE LITIGATION
[12]
An
action (the “main action”) for and interdict to prevent
the use and possession of the formulae of the applicant and
damages
to the estimated value of R5 000 000.00 arising out of the
respondents’ unlawful competition with the applicant (premised

on their alleged unlawful use and possession of formulae developed
and possessed by the applicant) had already been issued out
of this
court under case no. 6361/2022 on 14 December 2022 by the applicant.
Reginald Hendricks, an industrial chemist was cited
as third
defendant to Gecko Coating SA (Pty) Ltd and Chemfarben International
(Pty) Ltd; the first and second respondents
in
casu.
Theunes Potgieter was cited as the fourth respondent.
[13]
[13]
On 23 November 2022, the applicant that has
as its core business the manufacturing of automotive and industrial
refinish products,
convinced a court to grant an urgent order;
ex
parte
and
in
camera
(“the order”)
.
The order authorized the searching for
and seizure of the applicant’s alleged confidential and
proprietary formulae.
[14]
The applicant in their Heads of Argument at
paragraph 1 suggested that: “…as well as for an order
preserving evidence
against the respondents of their unlawful use of
the said formulae (“the Order”)”. The secondary
fall out may
indeed be the prevention of the illegal use of the
formulae in that the confiscation prevented the illegal use; the
formulae were
not readily available to misappropriate. But, reading
of the order does not indicate any order that interdicts the
respondents
explicitly so from the use of any material. The statement
is thus to be doubted. The purpose and nature of an Anton Piller
order
is not to cause an interdict, it is to prevent that the
evidence would be hidden, destroyed or “spirited away”.
[15]
The applicant went forth, in what can be
described as a blitzkrieg to, on the 24
th
of November 2022 as the businesses of the respondents opened; and
thereafter on the 25
th
of November 2022, execute the order. The respondents had no inkling
of the application and resultant order. This is the nature
of the
beast that is an Anton Piller order. This is to protect the evidence
and lies at the core of the relief.
[16]
The
Sheriff had to, and did, explain the significance, content, remedies
and consequences referred to in the order to the third
respondent.
The respondents immediately employed the services of an attorney.
[14]
[17]
The
respondents did not anticipate the order for which the rule
nisi
was set down on 16 March 2023 to oppose the execution of the order
and the search and seizure of the property as they had a right
to
do.
[15]
They filed their
Notice to Oppose on 5 December 2022.
[18]
The execution of the first part of the
order was finalized on 25 November 2023. The reports of the
Independent Supervising Attorneys,
the Independent Forensic Chemist
and the Scene Report from the Digital Forensic Laboratory: Cyanre,
were filed mid December 2022.
[19]
The attorneys for the respondents withdrew
from record on 18 January 2023 and Spangenberg Zietsman & Bloem
came on record for
the respondents on the same date.
[20]
The respondents filed their Opposing
Affidavit as per the order on 28 February 2023.
[21]
The case was due to be heard on 16 March
2023 but had to be postponed because the applicant failed to file
their Replying Affidavit
timeously.
[22]
They only filed on 9 May 2023 and without
an alleged proper application for condonation. They were forced into
complying with the
Uniform Rules of Court by a Notice in terms of
Rule 30 from the respondents filed on 19 May 2023. The notice
complained that the
application for condonation was not substantive
and it was also objected to new matter introduced in the Replying
Affidavit.
[23]
The wasted costs for the 16
th
of March 2023 were ordered to be paid by the applicant on attorney
and own client scale.
[24]
The Notice of Motion for Condonation was
served on 24 May 2023 and simultaneously with the applicant’s
Heads of Argument.
The application stands opposed by the respondents.
[25]
The
order was executed on three premises; the business premises of the
first and second respondents and the private residence of
the third
respondent. The order is extreme and invasive. Paragraphs 2 and 3 to
25 of the order illustrate the extent thereof. Safeguards
were built
in at,
inter
alia,
paragraphs 12 and 27; but in the same breath were the respondents
forewarned that: “The applicant will seek costs against
the
respondents, with such costs to include the costs of two counsel
where two counsel have been employed.”
[16]
[26]
Concurrently
with this application, ran a similar case against one Mr Hendricks in
the Gauteng Division of the High Court. Mr Hendricks
is a key role
player in the allegations against the respondents as will be shown
later. He was in the employ of the applicant and
allegedly leaked
information to the respondents and assisted them to produce some
products based on the formulae of the applicant.
He did not oppose
the application and admitted some wrongdoing.
[17]
In this case, with number 049384/2022, the rule
nisi
was confirmed.
[27]
The Gauteng case, in broad strokes,
confirmed the Anton Piller order and caused an order that the items
in the custody of the Sheriff
shall be so retained by the Sheriff
pending further direction of the court. The applicant was permitted
to make copies of the items
in the custody of the Sheriff and take
possession of two forensic copies of the hard drives of any digital
devices or media in
the custody of the Sheriff for the purposes of
the institution of further proceedings against the respondent.
[28]
The costs order in the Gauteng case read
that: “There is no order as to costs of this application. The
costs specified in
paragraph 34 of the rule
nisi
order are reserved until the action referred to in paragraph 36 of
the rule
nisi
is finalized.”
[29]
I return to the condonation application.
The success, or not, of the case for the applicant may turn on it.
CONDONATION
APPLICATION: LATE FILING OF THE REPLYING AFFIDAVIT BY THE APPLICANT
[30]
Condonation
is not to be granted casually. It is however trite that a court is
permitted to condone non-compliance with the Uniform
Rules of Court
to serve the interest of justice. A condonation application must, as
a rule in this division, be done with a substantive
application and
entail the filing of a Founding Affidavit. The affidavit must explain
as to how the default came about. The application
must express
bona
fide
conduct that was not aimed at delaying the case or to, in any manner,
sabotage the case. The nonfulfillment of their procedural

responsibility may not cause any prejudice to the opposing parties or
the administration of justice. It was ruled in
Grootboom
v National Prosecuting Authority and another
in the Constitutional Court that:
[18]
[22]
I have read the judgment by my colleague Zondo J. I agree with him
that, based on
Brummer
and
Van Wyk
, the
standard for considering an application for condonation is the
interests of justice. However, the concept 'interests of justice'
is
so elastic that it is not capable of precise definition. As the two
cases demonstrate, it includes: the nature of the relief
sought; the
extent and cause of the delay; the effect of the delay on the
administration of justice and other litigants; the reasonableness
of
the explanation for the delay; the importance of the issue to be
raised in the intended appeal; and the prospects of success.
It is
crucial to reiterate that both
Brummer
and
Van
Wyk
emphasize that the ultimate determination of what is in
the interests of justice must reflect due regard to all the relevant

factors but it is not necessarily limited to those mentioned above.
The particular circumstances of each case will determine which
of
these factors are relevant.
[23]
It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling
it to the
court's indulgence. It must show sufficient cause. This requires a
party to give a full explanation for the non-compliance
with the
rules or court's directions. Of great significance, the explanation
must be reasonable enough to excuse the default.
[31]
This is the explanation by the applicant
and the unrefuted reality:
1.
The order obtained in the Johannesburg High
Court was confirmed on 1 March 2023 and the applicant struggled to
obtain the signed
order from the registrar. The information in the
order is relevant to the matter in Bloemfontein. The order was only
made available
on 10 March 2023.
2.
The forensic evidence pertaining to the
Johannesburg case had to be obtained. The matter was delayed at the
Sheriff’s office
and the material were only finally handed over
on 17 March 2023.
3.
In total, the hard drives comprised 16 716
items.
4.
The forensic copies were discovered to be
unreadable because of the fact that the data on the hard drives was
preserved not to be
modified or altered by anybody.
5.
The hard drives had to be unsealed by
Cyanre that is the digital forensic expert company also involved in
the Johannesburg Anton
Piller matter. It took from 29 March 2023 to
13 April 2023 to finalize this task.
6.
Specialized software was necessary to
download this data.
7.
The various religious holidays in April
made consultations with relevant parties difficult. The applicant was
overseas from 8 to
16 April 2023.
8.
The affidavit was at an advanced stage on
16 April 2023 but further consultations had to be conducted with
witnesses such as Bergh
and Van Dyk based in Bloemfontein. Their
input was only available on 26 April 2023.
9.
The applicant’s attorney was
hospitalized from 23 April 2023 to 2 May 2023 and her laptop, on
which the data was offloaded,
could not be accessed without her being
in attendance. This was the state of affairs to protect the
confidentiality and veracity
of the evidence.
10.
There was no prejudice to the respondents.
They had the reports and all other information in their possession
well in advance.
11.
It will be to the prejudice of the
administration of justice if all the information contained in the
Replying Affidavit does not
form part of the case before court to be
adjudicated.
12.
The argument that new evidence was
introduced in the Replying Affidavit was not, substantially, taken
further by the respondents.
The objection notwithstanding; the
sui
generis
nature of an Anton Piller case
causes the reality that it is crucial that new evidence in the form
of the events during and after
the execution of the order, be
introduced into court.
13.
The extensive attack of the respondents on
the merits of the case gave the applicant no choice but to answer
thereto and to bring
the case into perspective. I must emphasize that
in the adjudication of the order the court must be cautious not to
delve into
the merits of the main action but for to establish the
existence of a
prima facie
cause(s) of action.
14.
The conduct of the applicant to file an
affidavit that was supposed to be filed on 15 March 2023 on 5 May
2023, immediately causes
a spontaneous irritation and an impression
of a haughty disregard for the Rules of Court, the court, the
respondents and the administration
of justice in general. The
relationship between the applicant and the respondents also tends to
give the feeling of a David - and
- Goliath scenario.
15.
The
above is true until the evidence in its entirety and the law is
regarded with factual and detached objective perspective. The

applicant was nothing but clinical and thorough in their approach to
the application. Their papers were detailed and extensive
and deal
with each particularity in law and fact. They left nothing to chance;
hence the delay in filing the Replying Affidavit.
It was a mammoth
task
[19]
that now serves the
interest of justice.
16.
As said and added to the above, is the fact
that the respondents erroneously attacked and dealt with the merits
in the main action
in their papers and forced the applicant to reply
thereto. Even so; the evidence in reply refuted the perception that
the applicant
wants to strong-arm the respondents into submission and
destroy their businesses to eliminate them as competition in the open
market
with the order.
17.
The allegations of the respondents in
opposition are vague, general and not substantiated by corroborating
evidence.
[32]
The Replying Affidavit of the applicant
gives a detailed exposition of the execution of the order and the
findings of the experts.
It stands unrefuted and is corroborated by
detailed sworn statements of the entities ordered to oversee the
execution of the order
and the witnesses. I will return to it later.
[33]
The
response of the respondents to the condonation is to rely heavily on
the new evidence introduced. They also allege prejudice
but do not
identify or detail the prejudice or the new evidence. They complain
that the applicant has to date not prove ownership
of the property
seized and “the Respondent does not have access there to in
order to consult with its legal representatives.”
[20]
[34]
The explanation of the applicants shows
good cause,
bona fides
and veracity. The evidence contained in the statement is vital for
the adjudication of the case. The respondents have not been

prejudiced since the evidence is of no surprise and shows that the
ownership of the product confiscated does exist. The scientists

attested to that.
[35]
The evidence shows that the applicant has
made out a case to justify suing and to the enforcement of their
legal right against the
respondent as they already did in December
2022. The cause of action existed before the Replying Affidavit by,
among others, the
evidence of Van Dyk and Bergh.
[36]
The application for condonation stands to
be granted. Each party to carry their own costs. The respondents had
a right to object
to the late filing of the affidavit and was not
unreasonable in doing so. The applicants did indeed cause a delay in
the case but
succeeded in their application.
[37]
Before the judgment goes into the merits of
the legality of the order and the execution thereof some more, and
detailed background,
is essential. It is, for instance, apposite to
understand the identity of the parties and the dichotomy of their
relationship.
THE PARTIES
The Applicant
[38]
The applicant is Luxor Paints (Pty) Ltd.
The applicant was incorporated and registered in 1999 and is a family
business. Mr K.Y.
Lurie is the managing director and sole shareholder
of the applicant. His father is the other director. The family has
been involved
in the business of manufacturing automotive paints in
South Africa since as early as the 1970’s.
[39]
In his Founding Affidavit the managing
director describes that the applicant has a successful business that
it carries on throughout
South Africa and Southern Africa. Apart from
having its head office and manufacturing facility in Boksburg, it
also has distribution
centers in Bloemfontein, Durban, Port
Elizabeth, Polokwane and Cape Town.
[40]
The core business of the applicant is the
manufacturing of automotive and industrial refinish products.
Refinish products are paint,
body filler and putties used to repair,
repaint or refurbish a motor vehicle, truck or industrial equipment
paint or bodywork.
The applicant also sells wood finish products and
accessory products used in the refinish process.
[41]
To
this end, the applicant manufacture paint, body filler and coating
products of its own design. In the course of its business
the
applicant has composed and developed formulae which are “kept
confidential and constitute the applicant’s trade
secrets,
intellectual property and proprietary information.”
[21]
[42]
The applicant generally sells its products
to distributors that are, mostly, independent owned small, medium and
micro enterprises
(SMME). These include paint shops such as the first
respondent, Gecko Coating SA (Pty) Ltd.
[43]
The applicant only sells some of its
products directly to very large end users such as transport companies
that require bulk specialized
products. The SMME paint shops, in
turn, supply end users such as mechanics, panel beaters and spray
painters with the applicant’s
products.
[44]
According to the managing director, the
applicant’s customers may compete with each other and they will
then provide certain
customers with different brands of the same
range of product at their own price and discount to enable them to
remain competitive.
[45]
The applicant also, in appropriate
circumstances, supplies its products in tins containing the branding
of the customer. These are
called “house brands”. Whilst
the applicant’s manufactured products are packed in tins, the
tins bear the brand
of the SMME/customer.
[46]
Importantly,
the managing director points out in his statement, that the South
African market is extremely varied, with many new
and old vehicles on
the road. That is the reason for the applicant manufacturing and
maintaining a stock of a variety of products
and technologies to
cater for the entire South African market. “The applicant has
branded its technologies into economical,
mid-range and premium
product ranges.”
[22]
[47]
In the course of its business, the
applicant has composed and developed its formulae which are kept
confidential and constitute
the applicant’s trade secrets,
intellectual property and proprietary information.
[48]
The applicant over the last 24 years has
made significant investments of its time, money and resources on
researching, testing,
formulating and producing high quality
formulated products that are well priced and suited to the market.
This is because the formulation
of such paint products from scratch
requires paint chemistry expertise which is not widely available in
South Africa, along with
an investment in research and development
and a good knowledge of the raw materials involved and who can supply
these.
[49]
All of the applicant’s formulae are
constantly tweaked and tested and all formulations go through various
iterations due to
the costs involved in the manufacturing process and
the availability of raw materials (which may be limited) and changing
market
needs.
[50]
The applicant has approximately 500
formulae in total (which include variations of formulations and old
archived formulae) and as
factors such as quality control
adjustments, raw material quality and availability changes, there are
often several formulations
for the same product which are all stored
on a computer database at the applicant’s Johannesburg premises
called “Compuchem”.
[51]
Strict restrictions are in place as to who
can access this database. Only the applicant’s senior chemist
(Driver), a senior
buyer and her assistant Jackie Bakker can access
this database. No one else has access to this database.
[52]
Furthermore, as the applicant’s
director states in his Founding Affidavit, that confidentiality is
still maintained throughout
the manufacturing process as:
123. By way of an
explanation, when a batch of paint is to be manufactured, Jackie will
access the Compuchem database and will print
a “batch card”
off the system which contains the latest formula for the batch which
is to be manufactured.
124. This batch card, in
turn, is handed to the factory manager or supervisor (based at the
applicant’s Jet Park head office)
who must sign for it. The
applicant’s technical staff then mixes the raw materials in
accordance with the relevant formula
(shown on the batch card) which
is then tested by the applicant’s quality control department.
125. Once the
manufacturing process is completed, the batch card is returned to
Jackie who closes the batch card and files it in
a locked cabinet in
her office. I confirm that this process is followed religiously.
[53]
Confidentiality
is also maintained by the applicant in requiring all of its staff,
including those with access to the Compuchem
database, to sign
restraint of trade and non-disclosure undertakings.
[23]
[54]
It is accordingly manifest that the
applicant’s confidential and proprietary formulae possess the
necessary quality of confidentiality,
and that the applicant has at
least a quasi-proprietary or legal interest in that information.
[55]
The formulae also constitute information
that is capable of application in trade or industry and which was
kept secret or confidential
and which, when objectively viewed, is of
economic (business) value to the applicant.
The Respondents and
their businesses
[56]
The third respondent is the managing
director and sole shareholder of the first and second respondents.
The first respondent, Gecko
Coating SA (Pty) Ltd carries on business
as a paint supplier (automotive paints, body filler, thinners and
other types of paints)
to the South African market. Its retail
business is situated in Bloemfontein as well as Pretoria North,
Polokwane and previously
George.
[57]
The first respondent opened its first
store in Bloemfontein in about 2014, its first Pretoria store in
September 2018, its store
in George that was subsequently sold, in
September 2019, its Polokwane store during February 2021 and the
second Pretoria store
in Pretoria in 2022. The principal place of
business of the first respondent is in Bloemfontein.
[58]
The core business of the first respondent
is to sell paints and related products.
[59]
The second respondent is Chemfarben
International (Pty) Ltd with its principal place of business
registered in Bloemfontein. According
to the applicant and undisputed
by the third respondent it appears that the second respondent has as
its primary business the manufacturing
of paints and paint products.
[60]
The first and second respondent’s
businesses premises are physically connected and the second
respondent’s premises
can be entered from the first respondent
despite different addresses registered. It is undisputed that both
the first and second
respondents’ use the same premises and it
is not possible to distinguish which part of the premises is used by
which business.
The relationship
between the applicant and the respondents and the factual cause for
the litigation
[61]
In
their Opposing Affidavit filed on 28 February 2023 the third
respondent Mr T Potgieter (Potgieter), as managing director of the

first and second respondents, described the spark that exploded into
the urgent application of 23 November 2022.
[24]
[62]
Potgieter’s
narrative, that the applicant denies,
[25]
is that the applicant has increased its prices to the first
respondent to such an extent over the year preceding the Anton Piller

order, that it was impossible for the first respondent to remain in
the competitive market. The applicant sold its paint products
to the
first respondent’s competitors at such reduced prices that the
first respondent was paying more for the applicant’s
products
than the same products being sold to the public by the first
respondent’s competitors.
[63]
Potgieter did explain his predicament to
the applicant. He requested a discount on the so-called “fast
mover” products
because he serves the “cheap market”.
He, over an extended period, complained to the applicant (Mr Lurie)
that they
are forcing him to consider manufacturing his own products
as a last resort to survive in the market.
[64]
The first and second respondents employed
their own experts to develop paint formulae and more than 400
formulae were so developed
since 2021. The first and second
respondents have invested a lot of time and money in the research and
testing of formulae with
the assistance of a qualified chemist and
people with experience in the field.
[65]
The applicant’s case is that a
material decrease in orders at the end of September 2022 and
complaints from two customers
received by Mr van Dyk, the branch
manager of the applicant in Bloemfontein, caused them to become
suspicious of the respondents.
[66]
They
embarked on investigations and obtained evidence from witnesses that
the respondents are unlawfully manufacturing certain products
using
the applicant’s formulae to do so.
[26]
Van Dyk also visited the first respondent’s premises on 4
October 2022 and learned that the first respondent was selling
a
paint called Chemfarben.
[27]
Mr Lurie was informed by Van Dyk during the week of 3 October 2022
that the second respondent uses Luxor Paints’ formulae.
[28]
[67]
The
witness for the applicant, one Mr Bergh, informed them that during
early August 2022 he had obtained Luxor Paints’ formulae
for
its Transline brand of paint, which until then had been packed by
Luxor Paint for the first respondent’s Ultra-Auto branded
tins.
Bergh positively identified one Mr Hendricks (the Stig) as the source
that supplied the information to Potgieter. Tests that
were performed
by one Mr Driver confirm that the applicant’s confidential and
proprietary formulae are being used unlawfully
by the first
respondent.
[29]
[68]
On 8 October 2022 Mr Lurie met with Bergh
personally who showed him an e-mail containing an Excel spreadsheet
with the applicant’s
formulae for the “Transline”
product. Reginald Hendricks assisted the respondents to manufacture
the product on 22
August 2022. Berg also made available to the
applicant photographs of the formulations he had access to, which are
being kept by
the respondents both in hard copy and electronically
and which has been saved on a computer at the first respondent’s
premises.
There was also a formulation with handwritten adjustments
made by Mr Hendricks on 22 August 2022. They clearly improved the
products
with the formulae of the applicant.
[69]
Hendricks
does not have access to the formulae and lists of raw materials used
to compose the paint products that are stored on
the computer data
base of the applicants. He would only have sight of the batch cards
that he is involved with as the chemist.
Hendricks, allegedly,
obtained the information in some underhanded manner and as instigated
by the respondents.
[30]
[70]
It
is the case for the applicant that the first and second respondents
are in this manner competing unlawfully with the applicants
in the
South African market. The applicant avers that the respondents seek
to gain an unfair advantage in the marketplace by eliminating
the
middleman by manufacturing its own products to sell directly to end
users at unreasonably low prices and the applicant needed
to protect
its customers against this predatory behaviour.
[31]
[71]
The
applicant gave an extensive exposition of their business relationship
with the respondents in the Replying Affidavit
[32]
that refutes the allegation of commercial sabotage of the respondents
by the applicant.
THE
ISSUES AND THE ADJUDICATION THEREOF
[33]
[72]
The issues will be dealt with as it was
stated by the respondent. It was determined from the Heads of
Argument for the respondents
from paragraph 4.6 to paragraph 5.10.
[73]
Potgieter
vehemently denies that he surreptitiously appropriated the formulae
of the applicant in any way and form. He denies using
their formulae
to manufacture products. He denies that he sold inferior products to
clients. Even if Reginald Hendricks did provide
the respondents with
the applicant’s formulae; this was done without the
respondents’ knowledge and against their instructions.
They did
not have reason to believe that Hendricks had provided any unlawful
formulae. They had no reason to be on their guard
to this fact.
[34]
There
is and was not a cause or causes for any action
.
[74]
The objection is dismissed on the following
reasons:
i.
On the above the law is clear that a
court may not pre-judge and dispose of any issue in the pending
action. The parties must not
address the merits of the pending action
in which they have yet to plead. Discovery in the action has not
occurred. As the applicant
correctly contended, the action is far
from trial. The flipside is that the search and seizure may not be an
investigating to create
a cause of action. At the time of the
application the cause or causes of action must exist steadfastly and
prima facie.
The merits might play a role in the adjudication of the veracity of
the application on this issue to see the existence of a cause
of
action.
ii.
The answer to the denial
of the respondents of any wrongdoing was
prima
facie
refuted by the applicant by their
affidavits as corroborated by the reports of the experts and the
Supporting Affidavits. The summery
as depicted in their Heads of
Argument from paragraph 37 to paragraph 73 suffices. I will not
burden the judgment with a repeat
of the evidence.
iii.
The applicant had already filed their
action wherein the causes of action were depicted in December 2022.
[75]
The respondents maintain that the applicant
had all the information they needed to initiate the action.
The
information could not be destroyed or concealed
.
Bergh had access to all the respondents’ confidential
information and he provided the photos to the applicant.
There
was not any need for the Anton Piller order
.
[76]
The defense is rejected on the following
basis:
i.
The reports of the experts prove that
there was information that had to be protected and that the
applicants could not legally access
it through Bergh.
ii.
The respondents miss the
point of the application.
This application
was aimed solely at recovering and sterilizing the applicant’s
confidential and proprietary formulae which
were believed to be; and
were found in the possession of the respondents. It is for the
preserving of evidence for the action that
was foreshadowed in the
application (that would otherwise be lost or destroyed).
iii.
The evidence of Bergh, Van Dyk and
Driver as summarized from paragraph 62 to 73 in the Heads of Argument
for the applicant shows
the need for the protection of the material
beyond any doubt.
[77]
It is the allegation of the respondents
that when the order was executed, it heavily disrupted the
respondents’ business for
a period of two days. It created the
impression of police clamping down on the business and searching for
some illegal substances.
The order was
unnecessarily invasive and harmed the reputation of the respondents.
[78]
The
defense above is dismissed due the evidence of the Independent
Supervising Attorneys as supported by the affidavits of the attorneys

that assisted them that sketches a clear and more reliable and
sincere picture. The attorney of the respondents was on the scene
of
the execution of the order and did not object or take any action to
prevent the search and seizure. The Sheriff confirmed that
the
respondent was informed of his rights. This is the crux of the report
of the Supervising Attorney:
[35]
i.
The third respondent requested the
doors to the first premises to remain open with sales continuing but
then agreed to close the
first premises for the duration of the
physical search. Same could be reopened once the search of the
electronic devices was underway;
ii.
sales with customers
that were present were concluded before the premises were locked;
iii.
customers were permitted to complete
transactions before leaving the premises that were to be searched;
iv.
the customers were not physically
escorted from the premises;
v.
the respondents agreed to close the
premises for the duration of the physical search and to allow the
reopening and trading during
the digital searches;
vi.
no complete shutdown was suggested
for an indefinite period of time;
vii.
the third respondent was
afforded an opportunity to obtain legal advice and representation
(and did so);
viii.
the search was scheduled in an effort
to reduce any harm or interruption to the respondents and it was
agreed that trading could
resume fully;
ix.
at all times the Independent
Supervising Attorneys acted to minimise the disruption to the
respondents and to protect their integrity
and privacy;
x.
during the second day of the search,
the first and second respondents traded throughout the day;
xi.
at most the premises were closed for
two and a half hours on the first day;
xii.
every measure was taken
to avoid disruption taking into account the content of the order and
the interests of protecting all the
parties involved.
xiii.
At worst the respondents could not
trade for
two and a half hours and not two
days as they falsely allege.
xiv.
Inevitably electronic devices that
store data, such as cell phones, must be searched. This occurred in
the least invasive manner
possible.
[79]
The
next objection is that it is unclear which specific paint products
are according to the applicant being produced and used by
the
respondents with the applicant’s formulae.
[36]
The specific products were identified by the applicant. The evidence
shows that each formula found in the execution of the order
was
individually considered by the Independent Expert Chemist, Mr Green.
The defense that the keywords and search were too wide
is
rejected.
[37]
i.
According to the applicant (and as
confirmed by Dominic Driver the applicant’s chemist):
“
Despite
the applicant manufacturing and supplying its paint products to the
first respondent, it is impossible for the first respondent
or any
other person to reverse engineer the applicant’s paint product
and discern the formulae used in the manufacture thereof.
Similarly,
the applicant is unable to determine from analyzing the second
respondent’s paint products alone whether its confidential
and
propriety formulae were used in the manufacturing process.”
and
“
The
first and second respondents could only manufacture their own quality
and cost-effective products if they had invested in research
and
development using a qualified chemist with paint experience or are in
possession of tried and tested formulations along with
lists of
suppliers of the necessary raw materials, none of which is easily or
freely available.”
[38]
ii.
Driver
subsequently analyzed and compared the formulae provided by Bergh and
it is manifest that the respondent is utilizing (by
modifying) the
applicant’s confidential formulae. Driver observed that 6 of
the provided formulae were based on or direct
copies of the
applicant’s confidential and proprietary formulae. His findings
in respect of each are that:
[39]
“
2K
S60 HS FILLING PRIMER GREY
: This
product is clearly based on Luxor’s Transline M.S. Grey
formulation.
This formulation has been
created by “piggy backing” off and modifying Luxor’s
formulation of Luxor’s market
leading product Transline MS
Primer Grey. The percentage of raw materials added are the same
.
If the formulation was unique, the percentages would differ.
The
only difference is the use of a slightly different pigment to derive
a different product colour which has no bearing on the
product’s
performance or use. The respondents have also substituted the talc as
they may not have been able to access the
same raw material as the
applicant
. The instructions differ, but
this can be expected and would be necessary because they have
different equipment. The instructions
would have to have been changed
by someone knowledgeable in paint chemistry.
2K
W10 FAST HARDENER
: This is
a
copy of an older formulation of Luxor’s Transline Fast
Hardener
. The reason the respondents
would prefer this older formulation is because it contains a
convenient thinners 2k blend. Using a
blend is easier to formulate
because you don’t need to blend different solvents. Luxor
decided to blend the thinners itself
to save costs.
It
also contains an intermediate product of the applicant called “INT
Thorcat Solution”. By way of explanation the applicant

routinely adds so called “intermediate products” into
other products. Intermediate products are solutions that the

applicant manufactures for use in another formulation. All of these
intermediate products (solutions) also have their own formulations

which are proprietary to the applicant.
For the reasons advanced above, it is not likely that this product
was independently formulated by the respondents.
NC
M1 GREY PRIMER
:
This
is an almost identical copy of an old formulation that was in use
between September 2020 and November 2020. This formulation
was
archived in November 2020. The applicant has not used the current
formulation since September 2020. This is a blatant copy
of Luxor’s
formulation
. The instructions are
identical and don’t make sense given that the respondents would
have different equipment.
This formula
also contains an intermediate product of the applicant called
“Luxprime Clear” which is a solution that
is specially
manufactured by the applicant for use in certain Luxprime products
based on its proprietary formula. “Luxprime”
is
proprietary of Luxor paints and proof that the respondent’s
formula belongs to Luxor Paints
.
M36
STONECHIP BLACK
:
This
is an almost identical copy of a current formula of the applicant
.
Having the identical raw materials, identical order of addition and
identical percentage addition of each raw material.
2K
J37 GLOSS BLACK
:
This
is an almost identical copy of a current formula of the applicant
.
Having the identical order of addition of raw materials and identical
percentage addition of each raw material.
M36
STONECHIP WHITE
:
This
product is clearly based on Luxor’s Stone Chip White
formulation. This formulation has been created by “piggy
backing” off and modifying Luxor’s formulation
.
The only difference is a slight increase in water and pigment
(titanium dioxide) content. The remaining raw materials are in the

same ratio as Luxor’s market leading formulation. The raw
materials used as well as the order of addition are identical to
the
applicant”. (Own emphasis)
iii.
The respondents seek to challenge
Driver’s findings through Mninikhaya Patrick Vani of Dumax
Paint, a chemist hired by them.
Vani could not and did not compare
the respondent’s formulae to those of the applicant and so, at
least at this stage, his
views are baseless and unfounded. It was
pointed out that it also is irrelevant whether or not the respondents
have the facilities
to manufacture the product - the fact remains
that they are in unlawful possession of the applicable formulae.
iv.
Certain formula also includes proprietary
intermediate products such as “INT Thorocat Solution” and
“Luxprime
Clear” which are confidential to the applicant
and there is no other reasonable scenario wherein the respondent
would have
such products in their formulations.
v.
Driver also logically states that:
“
Vani must
agree that if two formulations have very similar raw materials (if
not the same), with the same order of addition and
the same
quantities then the only conclusion that can be drawn is that that
there is only one source.
That
is, the one must have been copied or modified from the other. This is
what I mean when I refer to “piggy-backing”.
The formula
was modified from the
original source material”.
vi.
To this
end the applicant specifically detailed and motivated for each and
every keyword that the Court authorized.
vii.
Not
all of these keywords were authorized as no case had been made out
for 8 keywords not authorized that were omitted from the
Order at the
instance of the applicant’s counsel who brought this to the
attention of the Court that granted the Order.
viii.
The Court authorised keywords that related to:
the
names of the respondent’s products, the formula of which Driver
tested and concluded are being manufactured using the
applicant’s
formulae; the names of the applicant’s products whose formulae
were copied by the respondents; the names
of the applicant’s
products whose formulae may be in the possession of the respondents;
brand names unique to the applicant
(including toner products,
Nitrocellulose (N/C) based paint or product names, and
Quick-Drying (QD or Q/D) and Direct To Metal (DTM) product names)
;
the applicant’s product names (including product names supplied
to the fist respondent in the house branded Ultra Auto tins);

intermediate products that would be duplicated in copied formulation
(these being
products made for use in other product
formulations and which are only available to the applicant (as Driver
explains)); formulation
names which are unique to the applicant’s
Transline and Luxcoat range of products;
a raw
material unique to the applicant; keywords to identify Hendrick’s
involvement with the respondents.
ix.
Driver who stated:“I suggest, based on the tests I
have conducted, that insofar as the keywords to be used by
the
digital forensic experts are concerned, that the names of the
applicant’s intermediate products (solutions) be searched
for
as well as the names of the applicant’s 2k products (two stage
products), Nitrocellulose based paint or product names
(or
abbreviated as N/C or NC products) and Quick-Drying (abbreviated as
QD or Q/D) and Direct to metal (DTM) products be searched
for. This
is because the respondents also have QD and 2K formulations (as seen
above) and may also manufacture NC and DTM products”.
x.
The Court, having sight of the curriculum vitae of
Philip Green, appointed him as the Independent Forensic Chemist.
The
Independent Forensic Chemist, in turn, compared the formulae found at
the searched premises with those belonging to the applicant
to
determine whether they were the same or substantially similar to
those of the applicant’s formula (in the case of there
being a
modification thereto). The Independent Forensic Chemist accordingly
applied his knowledge and expertise to each, and every
formula sought
to be mirror imaged and forensically scrubbed. His report states:
[40]
“
The first
area/computer that we went to was in the Paint Production Area where
there were very simple Machines (High Speed Mixers/Blenders)
for
making Paint type products. The computer we found was in the
laboratory (no Paint test equipment was found) and apparently
the
computer is used by the Paint Production Supervisor (who was not
present) for receiving formulations and printing labels. When
MM
opened up the computer the first 3 e-mails, we found were from the
3
rd
Respondent to the Supervisor, which had originally
come from Reginald Hendricks (RH) from his G-Mail account to the 3
rd
Respondent and
were 3 Paint Formulations -all the names of which
not only were on the list of search words but were found in my Paint
Chemist expert
opinion to be
identical
to the
Luxor Product formulations on the lap top provided for my sole use
.
It was then decided by JR/MM to copy the hard drives of the computer
and then start the Key Word Search function (221 Key words).
I was
later informed that the search function failed several times, and it
was agreed, by the 3
rd
Respondent that the computer could
Wiped except for the Print Drivers and this was done by JR/MM under
Supervision (FE)
We then moved on to the
PC in the 3
rd
Respondents office -
we immediately found
examples of formulations on this PC so JR copied the Drives and
started the search function for 221 key words
after this process was
completed JR and I started to look at each document or e-mail one by
one where one of the 221 key words
were picked up -mostly the
documents picked up were invoices or quotations , however several
formulations were found , mostly on
e-mails to the 3
rd
Respondent from Reginald Hendricks G-Mail account –
then
using my Paint Chemistry knowledge and experience , plus access to
the Provided Luxor Formulations/Lap top I was able to determine

whether the found Formulations were very similar to the Luxor ones
-some were identical -with the same raw materials and quantities,

Some were at different Batch sizes so I had to mentally recalculate
them and found them to be similar . Some were Identical for
the
amounts of raw materials used but in some cases 1 or 2 raw materials
had been changed -but from my Technical Experience and
knowledge the
Changed, Raw materials were those that carried out exactly the same
function but from different suppliers. So, these
formulations were
also Deleted. We also found and deleted quite a few e-mails where,
Reginald Hendricks was supplying the 3
rd
Respondent with information on either alternative sources of raw
materials and equipment or providing Information where Luxor obtained

certain specific raw materials.
These documents were also
deleted. This process took 4.5 Hours and JR took note, Copies of all
documents that were deleted –
The 3
rd
Respondent via
his lawyer felt that certain formulations /documents were actually
pertaining to formulations that he had developed
himself from Generic
formulations either provided by equipment supplier or from raw
material suppliers -therefore we reviewed these
documents
/formulations -and using my Paint Technology expertise I decided
whether the 3rd Correspondent was correct or not -if
correct the
Documents were restored and if not deleted .
We arrived at circa 08h15
and found that the search program had completed its run we then
started to look at the E-mail portion
and found 33 E-mails that
contained Formulations or information from Reginald Hendrick’s
G-Mail Account these were deleted
by GS...
During
this period 2 Draw downs and formulations were found on the 3
rd
Respondent’s Desk but from what I could see that did not relate
to any of the Luxor Formulations – so were left
”
.
[80]
The respondents find it unclear as to
how Hendricks could have obtained the formulae
.
It is only speculated as to how he came into possession. This
question is to be answered in the main action. It is not disputed
by
Hendricks that he had the formulae and the evidence of Bergh and Van
Dyk supports his possession thereof.
[81]
The
applicant did not provide proof of ownership of the formulae
.
The answer lies in the following and the argument is dismissed:
[41]
i.
In
the course of its business, the applicant has composed and developed
its formulae which are kept confidential and constitute
the
applicant’s trade secrets, intellectual property and
proprietary information.
[42]
ii.
The
applicant over the last 24 years has made significant investments of
its time, money and resources on researching, testing,
formulating
and producing high quality formulated products that are well priced
and suited to the market. This is because the formulation
of such
paint products from scratch requires paint chemistry expertise which
is not widely available in South Africa, along with
an investment in
research and development and a good knowledge of the raw materials
involved and who can supply these.
[43]
iii.
All
of the applicant’s formulae are constantly tweaked and tested
and all formulations go through various iterations due to
the costs
involved in the manufacturing process and the availability of raw
materials (which may be limited) and changing market
needs.
[44]
iv.
The
applicant has approximately 500 formulae in total (which include
variations of formulations and old archived formulae and as
factors
such as quality control adjustments, raw material quality and
availability changes, there are often several formulations
for the
same product)
[45]
which are
all stored on a computer database at the applicant’s
Johannesburg premises called “Compuchem”.
[46]
v.
Strict
restrictions are in place as to who can access this database. Only
the applicant’s senior chemist (Driver), a senior
buyer and her
assistant Jackie Bakker can access this database. No one else has
access to this database.
[47]
vi.
Furthermore,
as the applicant’s director states in his Founding Affidavit,
that confidentiality is still maintained throughout
the manufacturing
process as:
[48]
By way of an explanation,
when a batch of paint is to be manufactured, Jackie will access the
Compuchem database and will print
a “batch card” off the
system which contains the latest formula for the batch which is to be
manufactured. This batch
card, in turn, is handed to the factory
manager or supervisor (based at the applicant’s Jet Park head
office) who must sign
for it. The applicant’s technical staff
then mix the raw materials in accordance with the relevant formula
(shown on the
batch card) which is then tested by the applicant’s
quality control department. Once the manufacturing process is
completed,
the batch card is returned to Jackie who closes the batch
card and files it in a locked cabinet in her office. I confirm that
this
process is followed religiously.
vii.
Confidentiality
is also maintained by the applicant in requiring all of its staff,
including those with access to the Compuchem
database, to sign
restraint of trade and non-disclosure undertakings.
[49]
viii.
It
is accordingly manifest that the applicant’s confidential and
proprietary formulae possess
the
necessary quality of confidentiality, and that the applicant has at
least a quasi-proprietary or legal interest in that information.
[50]
ix.
The
formulae also constitute information that is
capable
of application in trade or industry and which was kept secret or
confi­dential and which, when objectively viewed, is
of economic
(business) value to the applicant.
[51]
x.
Even
the respondents concede that the development of paint products from
scratch requires expertise along with investment, research
and
development as well as a good knowledge of the raw materials involved
and the suppliers thereof.
[52]
xi.
The
respondents however have provided no evidence, not even confirmatory
affidavits from the experts that the respondents allegedly

approached, to support their assertions that the third respondent has
invested significant amounts of money in research and
development.
[53]
xii.
Ironically,
Steven Dixon who is one of the listed experts and now working at the
applicant stated that the third respondent approached
him for the
applicant’s formulae and that he did not know same or even the
raw materials used therein.
[54]
[82]
The
relief claimed is confusing to the respondents; they state that on
the one hand the applicant wants for the preservation of
the evidence
and on the other hand they want to “scrub” and “delete”
the documents. The respondents misunderstand
the terms used and as
applied in practice. The scrubbing and deleting of the documents are
from the storage facilities of the respondents;
it was copied and
preserved by the experts for the applicant before it was removed from
the storage of the respondents.
[55]
[83]
The last recognizable defense of the
respondents is that the applicant was required to give the
respondents proper notice of the
application and should not have
proceeded on an
ex parte
basis. The defense cannot be maintained in light of the nature of the
relief and the reality that prevailed at the time of the
application
and now. It is dismissed.
i.
I repeat; this is the nature of the
beast. The Anton Piller has as its core purpose the denial of the
audi alteram partem
dictum. The rationale is that should the respondent be notified and
forewarned, the evidence might be destroyed or hidden and the

administration of justice will be defeated.
ii.
The applicant is,
however, required to demonstrate that there is a real and
well-founded apprehension that evidence may be hidden
or destroyed or
in some manner spirited away by the time the case comes to trial or
to the stage of discovery. This fear must not
be flimsy.
iii.
As detailed above no evidence has
been put forward by the respondents to demonstrate that the third
respondent invested any amounts
of money in research and development.
On the contrary, Driver has confirmed that the respondents are in
possession of identical
and modified formulations belonging to the
applicant. This was specifically confirmed during the execution of
the order by the
Independent Forensic Chemist.
iv.
It is also common cause that
Hendricks supplied the respondents with formulae on a digital Excel
spreadsheet.
v.
As the formulae were kept in both
hardcopy and in digital format (as confirmed by Bergh), there was a
real risk that such information
could be, by its very nature
destroyed or further distributed easily. Each day that passed, there
was a substantial risk that the
information would be concealed,
disseminated or unlawfully utilized by the respondents.
vi.
The collusion between Hendricks and
the third respondent was further revealed in Court when Hendricks
admitted his collusion with
the respondents to the Court when the
Johannesburg Anton Piller against him were confirmed by Judge Vally.
Hendricks stated in
Court:
“
MR
HENDRICKS: So, there are things that they found, which like I cannot
dispute it is there and there were reasons for that, and
that was the
Anton Piller. There is also the lawsuit in Bloemfontein that is also
taking place as well".
“
MR
HENDRICKS: Correct. So, there is from my side and my lack of minimal
understanding of the law, I cannot dispute anything…”
"COURT: They also
said you broke certain of your conditions, which involved tampering
with confidential information, et cetera.
They are suing you for
that.
MR HENDRICKS: Correct”.
“
MR
HENDRICKS: So, there were hardcopies that were found, that is the
first thing, which is not uncommon because we bring work home.
The
other thing was that on the hard drive I did presentations to the
owner of Luxor in terms of cost and formulations which was
done from
my personal PC. So of course, there were things that would have been
found on the PC.
There was on the emails
there were five formulations which I did assist Theunes Potgieter in
Bloemfontein and in terms of when they
confiscated those documents in
Bloemfontein, the chemist Luxor said it was similar but not the same.
So, they are disputing that
on their side in Bloemfontein. So, none
of the stuff was used.
The emails they found,
there was five formulations that were typed out on a spreadsheet and
that are forwarding to Theunes [the
third respondent]. So, I can
confirm that, Your Worship”. (Own emphasis)
vii.
Furthermore, it has been
ascertained that Hendricks had in his possession substantial
formulae, including formulae for automotive
products, and batch cards
which he had no basis to be in possession of (especially at his home
which was searched).
viii.
Hendricks, as an employee of the
applicant, owed the applicant a fiduciary duty to maintain the
confidentiality of the formulae.
This is over and above the
undertaking made by Hendricks in his employment contract and separate
confidentiality undertakings towards
the applicant (which expressly
lists the applicant’s raw materials, formulations, batch cards,
work processes, production
schedules and information stored on the
Compuchem database).
ix.
The secretive manner by which the
respondents were dealing with Hendricks, calling him “the Stig”
to hide his true identity
and in working with him after hours and
proposing to do so during the applicant’s December shutdown,
and also inducing Hendricks
to breach his undertakings to the
applicant, all is supportive of the real and well-founded
apprehension on the part of the applicant
that the formulae and other
relevant attached documents would be hidden from the applicant or in
some manner spirited away not
only to avoid detection and
preservation, but for further illicit use by the respondents.
x.
It is absurd to believe that in
approaching one of the applicant’s chemists for formulae, the
respondents would not believe
that same belonged to the applicant.
THE ANTON PILLER
ORDER ITSELF
[84]
Lastly,
the order speaks for itself. It is detailed with several safeguards
to attempt misuse and create relief for the respondents.
It cannot be
faulted.
[56]
IT IS ORDERED THAT:
1.   This
application is:
1.1.  heard as one
of urgency in terms of Rule 6(12), the requirements of the Rules of
Court in respect of notice and service
being dispensed with and the
applicant's departure therefrom are condoned;
1.2.  heard
in
camera
;
1.3.  not be made
public until the service and execution of the order set out below.
UNDERTAKINGS: -
2.   This order
is made on the basis that the applicant undertakes to this Court
that:
2.1.  this order
will not be executed outside the hours between 08h00 and 18h00 on a
weekday;
2.2.  the applicant
will prevent the disclosure of any information gained during the
execution of this order to any party except
in the course of
obtaining legal advice or pursuing litigation against the
respondent(s);
2.3.  the applicant
will compensate the respondents for any damage caused to the
respondents by any person exceeding the terms
of this order;
2.4.  the applicant
will compensate the respondents for any damage caused to the
respondents by reason of the execution of
this order should this
order subsequently be set aside.
IT IS ORDERED THAT: -
3.   The first,
second and third respondent (referred to jointly as “the
respondents”) and/or any other adult
person in charge or
control of the first respondents’ premises located at 17 Piet
Human Street, Hamilton, Bloemfontein, Free
State and the second
respondent’s premises at 3 George Lubbe Street, Hamilton,
Bloemfontein, Free State shall grant access
to the premises and to
such motor vehicle(s) (if any) in the possession or under the control
of the respondents and situated at
the premises to the following
persons:
3.1.  the Sheriff or
at least two Deputy Sheriffs of the High Court for the district of
Sheriff Bloemfontein East (“the
Sheriff”);
3.2.  any two of the
following individuals, attorney LIAD HADAR (Identity number 8[....]3)
and/or attorney GERALDINE SOUTHERN
(Identity number 9[....]82) and
/or attorney FARAH EINSTEIN (9[....]2) and/or attorney JAYSON JUNKOON
(Identity number 9[....]87)
and/or attorney NADIA SHAIK (Identity
number 9[....]82) and/or candidate attorney MAKAZIWE MSIBI (Identity
number 9[....]85) and/or
candidate attorney LOTANANG THABA (identity
number 9[....]89) and/or candidate attorney DOUGLAS KABUZI (Identity
number 9[....]84)
and/or candidate attorney GABRIEL LIDCHI (Identity
number 9[....]88) of HADAR INCORPORATED ATTORNEYS (“the
independent Supervising
Attorney”); and
3.3.  forensic
chemist PHILLIP GREEN (identify number 5[....]87) (“the
independent forensic Chemist”);
3.4.  any one, two
or three of the following individuals, JOHANNES ROUX (identity
number: 7[....]80), and/or PETRUS JACOBUS
ENGELBRECHT (identity
number: 7[....]87) and/or DANIEL JACOBUS OOSTHUIZEN (identity number:
9[...]86) and/or DANIEL CHRISTOFFEL
MYBURGH (identity number:
7[....]87); and/or NATASHA TALJAARD (Identity number: 8[....]85);
and/or MARIOUS OLIVIER MYBURGH (Identity
number: 7[....]80); and/or
GEORGE SKOSANA (Identity number: 9[....]83); and/or THANYANI MABUDA
(Identity number: 8[....]82); and/or
JACQUES VAN RENSBURG (Identity
number: 6[....]88); and/or BAREND JAKOBUS LABUSCHAGNE (Identity
number: 7[....]84); and/or CHARL
LOUW (Identity number: 7[....]89) of
CYANRE (PTY) LTD, who will act as the digital forensic expert(s) in
the matter.
4.   The third
respondent and/or other adult person(s) in charge or control of the
third respondent’s residential
premises located at 26 Puzzle
Bush Boulevard, Wild Olive Estate, Bloemfontein, Free State (“the
third premises”) shall
grant the following persons access to
the third respondent’s premises and to such motor vehicle(s)
(if any) in the third
respondents’ possession or under their
control, situated at the third respondent’s premises:
4.1   the
sheriff or the deputy sheriff of this Court for the district of
Sheriff Bloemfontein West (also referred to
as “the Sheriff”);
4.2   any two
of the following individuals, attorney LIAD HADAR (Identity number
8[....]3) and/or attorney GERALDINE SOUTHERN
(Identity number
9[....]82) and /or attorney FARAH EINSTEIN (9[....]2) and/or attorney
JAYSON JUNKOON (Identity number 9[....]87)
and/or attorney NADIA
SHAIK (Identity number 9[....]82) and/or candidate attorney MAKAZIWE
MSIBI (Identity number 9[....]85) and/or
candidate attorney LOTANANG
THABA (identity number 9[....]89) and/or candidate attorney DOUGLAS
KABUZI (Identity number 9[....]84)
and/or candidate attorney GABRIEL
LIDCHI (Identity number 9[....]88) of HADAR INCORPORATED ATTORNEYS
(“the independent Supervising
Attorney”); and
4.3   forensic
chemist PHILLIP GREEN (identify number 5[....]87) (“the
independent forensic Chemist” as detailed
above);
4.4   any one,
two or three of the following individuals, JOHANNES ROUX (identity
number: 7[....]80), and/or PETRUS JACOBUS
ENGELBRECHT (identity
number: 7[....]87) and/or DANIEL JACOBUS OOSTHUIZEN (identity number:
9[...]86) and/or DANIEL CHRISTOFFEL
MYBURGH (identity number:
7[....]87); and/or NATASHA TALJAARD (Identity number: 8[....]85);
and/or MARIOUS OLIVIER MYBURGH (Identity
number: 7[....]80); and/or
GEORGE SKOSANA (Identity number: 9[....]83); and/or THANYANI MABUDA
(Identity number: 8[....]82); and/or
JACQUES VAN RENSBURG (Identity
number: 6[....]88); and/or BAREND JAKOBUS LABUSCHAGNE (Identity
number: 7[....]84); and/or CHARL
LOUW (Identity number: 7[....]89) of
CYANRE (PTY) LTD, who will act as the digital forensic expert(s) in
the matter.
5.   The
respondents and/or any other adult person in charge or control of the
first, second and/or third premises, must
grant access to the
premises and to vehicle(s) in their possession or under their control
on the premises, if any, to the independent
supervising attorney, the
independent forensic chemist, the digital forensic expert(s), and the
sheriffs (collectively, "the
search persons"), solely for
the purposes of:
5.1   searching
the premises and/or aforesaid vehicles in order to enable any of the
search persons to identify and point
out “the evidence”
to the sheriff, being:
5.1.1  the
applicant’s confidential information being the applicant’s
confidential and proprietary formulae for
the manufacture of paint
products and/or formulae which, in the opinion of the independent
forensic chemist are substantially similar
to those of the
applicant’s confidential and proprietary formulae for the
manufacture of paint products (“the formulae”);
5.1.2  originals or
copies (whether in hard copy of electronic form) of documents and/or
correspondence concerning the respondent’s
unlawful competition
with the applicant including, but not limited to, copies of:
5.1.2.1
emails, WhatsApp messages or other correspondence bearing any of the
below-mentioned keywords concerning the
use of the formulae;
5.1.2.2
emails, WhatsApp messages or other correspondence bearing any of the
below-mentioned keywords concerning and/or
relating to the inducement
of REGINALD HENDRICKS to breach his confidentiality and restraint of
trade undertakings to the applicant;
5.2   searching
the premises for purposes of finding and thereafter searching and
examining any networks, desktop computers,
laptop computers, tablet
computers, portable information storage devices, external data
storage devices, including external hard
drives, flash drives, iPods,
iPhones, iPads, smart phones, electronic tablets, shufflers, compact
discs (CDs), digital versatile
discs (DVDs), stiffy discs, floppy
disks, jazz drives, data cartridges, zip drives, memory sticks,
mobile phones, SIM cards and
electronic devices or media with the
capability of storing information and/or data digitally, as well as
any data, data storage
location or network component (including but
not limited to Cloud Hosting, Dropbox, virtual servers or other data
hosted locally
or internationally) to which the respondents have
access or control over or ownership of by directly, indirectly or
remotely connecting
thereto (collectively described as "digital
devices or media") on the premises or in the vehicle(s), by
connecting each
of the digital devices or media to forensic
computers, for the purpose of identifying it and determining whether
it contains the
formulae;
5.3   In
carrying out the search at the premises and associated vehicles, the
digital forensic expert(s) are to conduct
search strings on the
digital devices or media designed to locate the evidence containing
the following key words: (the order contains
221 key words)
5.4
permitting and allowing the digital forensic expert(s) to:
5.4.1  make a disk
copy and/or compact disc copies and/or to capture forensic images
and/or to make two complete mirror images
and/or digital images (for
identification purposes) of the hard drives of any digital devices or
media located on the premises
concerned or in the vehicle(s), or to
download or create a data dump of online or hosted data, once it is
determined that such
digital devices or media contain the evidence or
part thereof;
5.4.2  make
print-outs of any of the formulae located on any such digital devices
or media, if copies of the hard drives cannot
be made; and
5.4.3  permanently
delete the formulae from all such digital devices or media found to
have contained the formulae including
by over-writing the data with
random data so as to prevent data recovery of the deleted data
(forensic scrubbing) provided a mirror
image of such formulae is made
(as detailed above).
6.   The
respondents and/or any adult person in control of any of the digital
devices or media on the premises concerned
or in the vehicles, must
forthwith disclose to the search persons any passwords and/or
procedures required for the effective access
to such digital devices
or media for the purposes of paragraph 5 above;
7.   In the
event that the respondents and/or any other adult person in charge or
control of the premises refuses to grant
access to the premises and
to the respondents’ vehicle(s) on the premises concerned and/or
any safe at the first and second
respondent’s premises, a
locksmith (assisted by a member of the South African Police Service,
if necessary), may obtain access
to the premises and/or vehicle(s)
and/or safe(s) as necessary.
8.   Subject to
paragraph 16 hereof, the sheriff is authorized to attach any items
pointed out by any of the aforesaid
persons and any digital devices
or media, and any forensic copies of hard drives of any digital
devices or media storage, or print-outs
of any such items
(collectively, "the identified items").
9.   The
sheriff shall keep the identified items in their custody until the
applicant authorizes their release to the
respondent or this Court
directs otherwise.
10. In the event that the
digital forensic expert(s) are unable, for any unforeseen reason, to
fulfill their functions in terms
of this order, they are authorized
to conduct such forensic investigations as contemplated in this
order, in the presence of the
independent supervising attorneys and
the sheriff, no later than two days after the identified items have
been taken into custody
by the sheriff.
11. Until completion of
the search authorized in the preceding paragraphs hereof, the
respondents may not access any digital devices
or media storage or
any area where documents or items of the class mentioned in paragraph
5.1 hereof may be present, except with
the leave of the independent
supervising attorney, or to make telephone calls or send any
electronic message to obtain the attendance
and advice mentioned in
the notice which is handed over immediately prior to execution of
this order.
12. The sheriff shall
before this application is served or this order is executed –
12.1   hand to
the respondents, or any other person found in charge or control of
the premises, a copy of the notice which
is annexed hereto as
Annexure A; and
12.2   explain
to the respondents or such person, paragraphs 2, 3 and 4 thereof; and
12.3   inform
the respondents or such person of the following:
12.3.1   that
any interested party may apply to this Court on not less than
twenty-four (24) hours' notice to the offices
of the applicant's
attorney for a variation or setting aside of this order, the Court's
practices and rules applying unless the
Court directs otherwise;
12.3.2   that
the respondent or their legal representative is entitled to inspect
the items in the sheriff’s custody
for the purpose of
satisfying themselves that the inventory is correct.
13. The respondents,
and/or any other adult person(s) in charge or control of the first
and/or second premises or the third premises,
must disclose to the
Sheriff the whereabouts of any item falling within the category of
items mentioned in paragraph 5.1 hereof,
whether at the premises or
elsewhere, to the extent that such whereabouts are known to the
respondents or either of them or such
person(s).
14. In the event that any
item is disclosed to be situated at any other place than the premises
or the vehicle(s), the applicant
may approach this Court ex parte for
leave to permit execution of this order at such other place.
15. Should the
applicant’s other confidential information be found by the
search party during the execution of this order,
the applicant is
granted leave to supplement its application and to approach this
Court ex parte for leave to permit the seizure
and/or mirror-imaging
and/or forensic scrubbing (as the case may be) of such material in
the manner specified in this order or
such other manner as the Court
might permit.
16. The sheriff shall
make a detailed inventory of the identified items immediately after
taking custody thereof, and shall provide
a clear copy of such
inventory to the Registrar of this Court, the applicant's attorney,
the independent supervising attorney and
the respondents.
17. In the event of the
respondents or any of them raising any contention in law why any of
the identified items should not be inspected
and/or copied, such
respondent(s) shall, within a period of three (3) court days after
the identified items have been taken into
the custody of the sheriff
as provided above, identify on oath the item in respect of which
objection is taken to such inspection
and/or copying and state on
oath the reasons for the objection and serve such affidavit on
applicant's attorneys.
18. After the inspection
described in the preceding paragraphs hereof, the sheriff shall
retain the identified items pending the
outcome of this application.
19. The sheriff shall
inform the respondent that the execution of this order does not
dispose of all the relief sought by the applicant
and shall
simultaneously serve the notice of motion and explain the nature and
exigency thereof.
20. The independent
supervising attorney shall monitor and oversee all aspects of the
execution of this order and, together with
the sheriff, shall make a
list of all items removed by the sheriff in terms of this order, one
copy of such list to be handed to
the respondent(s), if present, or
to the person(s) upon whom service is effected as referred to above,
and one copy of the such
list to be retained by the sheriff.
21. The independent
supervising attorney accompanying the sheriff at the premises
identified above shall, within ten (10) days of
the execution of this
order, cause to be delivered an affidavit or affidavits:
21.1   setting
out fully the manner in which the order was executed at the premises
and stating whether, in the independent
supervising attorney's
opinion, there occurred any abuse or breach of any provisions of this
order; and
21.2
attaching the inventory compiled in terms of this order.
22. The independent
forensic chemist accompanying the sheriff at the premises identified
above shall, within ten (10) days of the
execution of this order,
cause to be delivered a report setting out the manner by which the
chemical formulae found at the premises
were identified to fall
within the definition of “the formulae” (as detailed
above).
23. This order shall upon
proper service on the respondents, operate as an interim order with
immediate effect.
RULE
NISI
24. The respondents are
called upon to show cause before this Court, on 16 MARCH 2023 at
10h00 or so soon thereafter as the matter
may be heard, why an order
in the following terms shall not be made final in the following
terms:
24.1   that the
identified items in the custody of the Sheriff shall be retained by
the Sheriff pending the further direction
of this Court;
24.2   that the
applicant is permitted to:
24.2.1   make
copies of the items in the custody of the Sheriff; and
24.2.2   take
possession of the two forensic copies of the hard drives of any
digital devices or media in the custody
of the Sheriff; for the
purposes of instituting the further proceedings against the
respondents foreshadowed in this application;
25. Should any of the
respondents wish to oppose the relief, they shall deliver their
answering affidavit(s), if any, or a notice
envisaged in terms of
Uniform Rule 6(5)(d)(iii) on or before 28 February 2023.
COSTS
26. The costs of this
application are reserved for determination on the return date. The
applicant will seek costs against the respondents,
with such costs to
include the costs of two counsel where two counsel have been
employed.
27. If the proceedings
foreshadowed in this application are not instituted within 30
(thirty) days after the execution of this order,
either party may, on
no less than 96 hours’ notice to the other party, apply to the
above Honorable Court for an order determining
liability for such
costs and determining what must be done about the identified items
and any copies thereof;
28.
Any person affected by the grant or execution of this order may, on
no less than 96 hours’ notice to the parties hereto,
apply to
this Court for an order determining liability for the costs of such
person and determining what must be done about any
of the identified
items pertaining to such person or any copy thereof.
[57]
CONCLUSION
[85]  The applicant
has proven that a valid cause of action exists against the
respondent(s) and they did indeed already institute
action to pursue
the cause(s) of action; the respondent(s) had possession of the
documents or articles that are vital evidence
in substantiation of
the applicant’s cause of action; and there existed a real and
well-founded apprehension that the evidence
would be hidden,
destroyed or “spirited away”. The evidence showed that
the material in issue was legally appropriately
identified and
specified and that the applicant has a
prima facie
right to
the protection of the evidence. The confirmation of the order and the
granting of the relief in paragraph 24 will serve
the interest of
justice. The “harm” done to the rights of the respondent
that were affected; such as the non-compliance
to the
audi alteram
partum
dictum, the invasion of the privacy of the respondents and
seizure of property, is in balance to the relief granted and the
purpose
therefore. The principle of proportionality as decreed in the
Constitution was maintained.
[86]
ORDER
It is ordered that:
1.
Condonation is granted for the late filing
of the Replying Affidavit by the applicant; each party to pay their
own costs in the
application.
2.
The order dated 23 November 2022 is
confirmed.
3.
In terms of paragraph 24 of the order, the
identified items in the custody of the Sheriff shall be retained by
the Sheriff pending
the further direction of this Court and the
applicant is permitted to:
i.
Make copies of the items in the
custody of the Sheriff; and
ii.
take possession of the two forensic copies
of the hard drives of any digital devices or media in the custody of
the Sheriff for
the purposes of instituting the further proceedings
against the respondents foreshadowed in this application.
4.
The costs of this application are reserved
for adjudication in the main action foreshadowed in this application.
M OPPERMAN, J
APPEARANCES
For the
applicant:
I
MILTZ SC & D BLOCK
Instructed
by:                                          Ian

Levitt Attorneys
SANDTON
For the first to third
respondents:
S
GROBLER SC & MDJ STEENKAMP
Instructed
by:                                          Spangenberg

Zietsman & Bloem Attorneys
BLOEMFONTEIN
[1]
Anton
Piller KG v Manufacturing Processes Ltd and others
[1975] EWCA Civ 12
,
[1976] 1 All ER 779
(8 December 1975),
Anton
Piller KG v Manufacturing Processes and others
[1975] EWCA Civ 12
;
(1976) 1 All ER 779
, in the judgment of Lord Denning. He stated
that:
But
the order sought in this case is not a search warrant. It does not
authorise the plaintiffs’ solicitors or anyone else
to enter
the defendant’s premises against his will. It does not
authorise the breaking down of any doors, nor the slipping
in by a
back door, nor getting in by an open door or window. It only
authorises entry and inspection by the permission of the
defendant.
The plaintiff must get the defendant’s permission. But it does
do this: It brings pressure on the defendant
to give permission. It
does more. It actually orders him to give permission - with, I
suppose, the result that if he does not
give permission, he is
guilty of contempt of Court.
[2]
Memory
Institute SA CC t/a SA Memory Institute v Hansen and others
2004 (2) SA 630
(SCA) at [3].
[3]
Absa
Insurance and Financial Advisers (Pty) Ltd v Moller and others
(20216/2014)
[2014] ZAWCHC 176
(21 November 2014) at [9] to [11] and
Gordon
Lloyd Page & Associates v Rivera and another
2001 (1) SA 88
(SCA) at [10].
[4]
Erasmus:
Superior
Court Practice
at RS 20, 2022, D8-1 (Juta.co.za) with reference to case law being
that in
Rath
v Rees
2007 (1) SA 99
(C) at 107H & 108A, the reasons being that ‘it
authorises access to the respondent’s premises for purposes of
searching for and seizing documents and material relevant to a
proposed action before an action has been instituted against the

respondent’ and that ‘the application for such order is
brought
ex
parte
,
without notice to the respondent, while the hearing is frequently
in
camera
,
with a view to avoiding any form of publicity which might arise
should the application be brought in open court’ (at 107H–I).

See also
Mathias
International Ltd v Baillache
2015 (2) SA 357
(WCC) at 362E, 363D, 363H–I and the cases
there referred to;
Cratos
Capital (Pty) Ltd v Zimri Investments CC
(unreported, WCC case no 20968/2021 dated 24 May 2022) at paragraph
[17] and the cases there referred to.
Van
Der Merwe v Van Wyk Auditors
(unreported, GP case no 48149/2021 dated 18 July 2022) at paragraph
[50].
[5]
In
Hudaco
Trading (Pty) Ltd v Apex Superior Quality Parts (Pty) Ltd and others
(12825/2020) [2021] ZAGPJHC 166 (12 April 2021) counsel for the
applicant
in
casu
successfully opposed and had the Anton Piller order discharged and
the Sheriff directed to return to the second respondent the
material
seized in the execution of the provisional order and that the
applicant shall be liable to pay the second respondent’s
costs
of suit. The respondents’ main grounds of opposition were
that: (i) no proper case was made out for the granting
of the Anton
Piller order, (ii) the order obtained was in the broadest and
vaguest of terms and did not comply with the law and
practice
directives; (iii) the process was abused by the applicant with the
aim of stifling competition between itself and the
first respondent;
and (iv) the execution of the order exceeded the law in several
respects, justifying its discharge. In
Non-Detonating
Solutions (Pty) Ltd v Durie and another
2016 (3) SA 445
(SCA) the requirement of specificity, i.e., that an
applicant had to show that a respondent had in their possession
specific
(and specified) documents that constituted vital evidence
in substantiation of the applicant’s cause of action, did not
mean that only individual documents identified by, for example, date
or origin; were properly liable to be attached.
To
so hold would be against established law, which permitted search and
seizure orders for specific classes of documents. The
evidence
sought must be vital. Vital in the sense of being evidence of great
importance to the applicant’s case
.
(Emphasis added)
[6]
Civil Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 35 DISCOVERY, INSPECTION AND
PRODUCTION OF DOCUMENTS, Excursus Anton Piller Orders, Last Updated:

February 2023 at B35.31 to B35.37, LexisNexis. Also see Erasmus,
Anton
Piller Orders in South African Practice
(1984) 101 SALJ 324
; Erasmus,
The
Anton Piller Muddle
(1991) 108 SALJ 379
and Herbstein & Von Winsen,
Civil
Practice,
1495–1518, Juta.
[7]
Shoba v
Officer Commanding, Temporary Police Camp, Wagendrift Dam; Mphanga v
Officer Commanding, South African Police Murder and
Robbery Unit,
Pietermaritzburg
1995 (4) SA 1
(A) 15G and 19H. The procedure of granting
ex
parte
orders
in
camera
is not desirable (
Knox
D’Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996 (4) SA 348
(A) 379) but it is permitted if the circumstances
justify it, (
Director
of Public Prosecutions v Mohamed NO
2003
(4) SA 1 (CC)).
[8]
Supra
at B35.32.
[9]
Harms
supra
at 35.36.
Hudaco
Trading (Pty) Ltd v Apex Superior Quality Parts (Pty) Ltd and others
(12825/2020) [2021] ZAGPJHC 166 (12 April 2021).
[10]
Harms
supra
at 35.36.
[11]
See
Erasmus
supra
at “4. Discretion of Court” on RS 20, 2022, D8-6 to RS
20, 2022, D8-8.
[12]
Supra
B35.35
“Discretion and constitutionality”.
[13]
Pages 518 to 534
of
the Bundle: “Urgent Anton Piller Application” dated 16
May 2023 (“the Bundle”. All references will
be to
documents in the Bundle except if otherwise indicated).
[14]
Pages
248 and 254.
[15]
In terms of clause 12.3.1 of the order: “… any
interested party may apply to this Court on not less than

twenty-four (24) hours' notice to the offices of the applicant's
attorney for a variation or setting aside of this order, the Court's

practices and rules applying unless the Court directs otherwise; …”
[16]
See the order depicted at the end of the judgment.
[17]
See the quotation later in the judgment extracted from the record of
the proceedings in the Gauteng High Court.
[18]
2014 (2) SA 68
(CC),
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A),
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) and
Smith
NO v Brummer NO
1954 (3) SA 352 (O).
[19]
Eighty-eight pages.
[20]
Paragraph
10.2 on page 17 of the “Application for Condonation”
Bundle.
[21]
Page
42 at paragraph 10.
[22]
P
age
44 at paragraph 18.
[23]
Paragraph 126 of the Founding Affidavit on page 69.
[24]
Page 328 at paragraph 6 and pages 336 to 337 at paragraph 28.
[25]
Heads of Argument for the respondent at paragraphs 4.1 to 4.9.
[26]
Page 73 at paragraph 57 and page 76 at paragraph 76.
[27]
Pages
58 to 59 at paragraphs 75 and 79.
[28]
Page
62 at paragraph 94.
[29]
Page
66 at paragraphs 114 and 115.
[30]
Pages
78 to 79 at paragraphs 136 to 139.
[31]
Page
43 at paragraph 16.
[32]
Inter
alia
,
at paragraphs 34 to 35.16 on pages 450 to 454.
[33]
Paragraphs
4 and 5 of the Heads of Argument for the respondents.
[34]
Pages 349 to 352.
[35]
The reports of the Independent Supervising Attorneys, Hadar are at
pages 270 to 288 and 604 to 609. There is also the report
of the
Independent Supervising Attorney at the third premises, G Southern
at pages 257 to 265. The evidence was summarised in
the Heads of
Argument for the applicant at paragraphs 99 to 104.
[36]
Heads
of Argument for the respondents at paragraph 5.1.
[37]
Heads
of Argument for the applicant at paragraphs 89 to 98.
[38]
Founding
Affidavit page 60 paragraph 87.
[39]
Founding
Affidavit page 137 paragraph 18 and further (FA 11 on pages 133 to
144).
[40]
Report
of the Independent Forensic Chemist at pages 290 to 294 & 602 to
603.
[41]
I
acknowledge the summary of the evidence in the Heads of Argument for
the applicant that is correct and that aligns with the
evidence in
the affidavits and reports submitted.
[42]
Founding
Affidavit page 42 paragraph 10.
[43]
Founding
Affidavit page 67 paragraph 116.
[44]
Founding
Affidavit page 67 paragraph 117.
[45]
Founding
Affidavit page 68 paragraph 121.
[46]
Founding
Affidavit page 67 paragraph 120.
[47]
Founding
Affidavit page 68 paragraph 122.
[48]
Founding
Affidavit page 68 paragraph 123 to 126.
[49]
Founding
Affidavit page 69 paragraph 126.
[50]
Gordon
Lloyd Page & Associates
v
Rivera
and another
2001 (1) SA 88
(SCA) at [10].
[51]
Alum-Phos
(Pty) Ltd
v
Spatz
and another
[1997]
1 All SA 616
(W)
at 623g–624a:
In
order to qualify as confidential information, the information
concerned must comply with three requirements. First, it must

involve and be capable of application in trade or industry: i.e., it
must be useful (Van Heerden & Neethling,
Unlawful competition
at 225). Second, it must not be public knowledge and public
property: i.e. objectively determined it must be known only to a

restricted number of people or to a closed circle (
Saltman
Engineering Co Ltd v Campbell Engineering Co Ltd
[1948] 65 RPC
203
(CA) at 211 and 215:
Harvey Tiling Co (Pty) Ltd v Rodomac
(Pty) Ltd
1977 (1) SA 316
(T) at 321G-H:
Van Castricum v
Theunissen and another
1993 (2) SA 726
(T) at 731C-E and the
cases there cited). Third, the information objectively determined
must be of economic value to the person
seeking to protect it
(
Coolair Ventilator Co (SA) (Pty) Limited v Liebenberg
1967
(1) SA 686
(W) at 691B-C:
Van Castricum v Theunissen
supra
at 732A-F). The nature of the information is irrelevant. If it
complies with the requirements stated it will be confidential
(
SA
Historical Mint (Pty) Ltd v Sutcliffe and another
1983 (2) SA 84
(C) at 89H-90D:
Meter Systems Holdings Limited v Venter
1993
(1) SA 409
(W) at 428A-430H). Ordinary general information about a
business does not become confidential because the proprietor chooses

to call it confidential (
SA Historical Mint (Pty) Ltd v Sutcliffe
and another
supra
at 89H). Whether or not what appears to
be a commonplace piece of business information is confidential will
depend on all the
relevant circumstances.
[52]
Answering
Affidavit page 350 paragraph 60.
[53]
Replying
Affidavit page 447 at paragraph 62 (Compare to the allegations made
in the Answering Affidavit on page 342 paragraph
41).
[54]
Replying
Affidavit page 478 paragraph 62.6.
[55]
Scene Report: Johan Roux pages 295 to 319 and explanations given in
court during the hearing of the application.
[56]
Harms
supra
at 35.34 with reference to
Hall
v Heyns
1991 (1) SA 381
(C) 387;
Cerebos
Food Corporation Ltd v Diverse Food SA (Pty) Ltd
1984 (4) SA 149
(T) at 174. Because of the drastic nature of the
order, it follows that safeguards ought to be built into the order
itself:
Roamer
Watch Co SA v African Textile Distributors also t/a MK Patel
Wholesale Merchants and Direct Importers
1980
(2) SA 254
(W) 273.
Pohlman
v Van Schalkwyk
[2000] 2 All SA 265
(E) deals with the dangers of applying for and
obtaining an over-broad Anton Piller order.
[57]
Also
see Annexure A to the order at pages 37 to 39.