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[2020] ZAGPPHC 22
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Adamson and Another v Houston Group (Pty) Ltd (50920/2019) [2020] ZAGPPHC 22 (17 February 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
Case
No:
50920/2019
17/2/2020
In
the matter between:
LUKE
JONATHAN ADAMSON
FIRST
APPLICANT
DISCOUNT
BOARD SPECIALISTS (PTY) LTD
SECOND APPLICANT
(Respondents
in the
ex parte
Anton Piller application)
and
HOUSTON
GROUP (PTY) LTD
RESPONDENT
In
re:
In
the
ex parte
application of:
HOUSTON
GROUP (PTY) LTD
APPLICANT
LUKE
JONATHAN ADAMSON
FIRST RESPONDENT
DISCOUNT
BOARD SPECIALISTS (PTY) LTD
SECOND
RESPONDENT
JUDGMENT:
RECONSIDERATION
BASSON
J
Introduction
[1]
On 18 July 2019 this Court granted on an urgent basis an
ex parte
Anton Piller order under case number 50920/2019. The applicant
in the
ex parte
application is Houston Group (Pty) Ltd (“the
applicant”). The first respondent is Mr. Adamson
(“Adamson”)
and the second respondent is Discount Board
Specialists (Pty) Ltd (“Discount”). Where
applicable, I will refer
to Adamson and Discount collectively as “the
respondents”.
Reconsideration
application
[2]
This is an application for the reconsideration of the
ex parte
Anton Piller order and for a punitive costs order. The
applicants in the reconsideration application are the two respondents
in the
ex parte
application.
Papers
filed in the reconsideration application
[3]
Before I turn to the merits of the
reconsideration application, it is necessary to first refer to the
manner in which the respondents
launched this application. Instead
of filing an answering affidavit opposing the application for the
Anton Piller order and
setting down the matter by way of a mere
notice, the respondents (now ostensibly the applicants) opted to
launch a further urgent
application by filing a founding affidavit
(albeit under the same case number) seeking an order that the order
granted on 18 July
2019 be reconsidered and set aside.
[4]
The applicant (Houston) then filed a replying
affidavit (procedurally correctly so) to the respondents’
founding affidavit.
Why the respondents have opted for this procedure
is unclear except perhaps to try to gain an advantage by filing a new
application
and somehow acquire the right to file a replying
affidavit. In order to avoid confusion created by the process
chosen by
the respondents, I will continue to refer to the parties as
they were in convention in the initial
ex
parte
application.
[5]
On 30 July 2019 the applicant’s attorneys
addressed a letter to the respondents’ attorneys affording them
an opportunity
to rectify same. The applicant’s attorneys
were informed that the papers would not be amended.
Background
facts
[6]
The facts on which this Court considered the
ex parte
application are set out in fair detail in the founding affidavit
deposed to by Mr. Bera (“Bera”) – a co-director
of
the applicant. It is those facts that must be considered in deciding
whether the applicant has made out a case for the relief
sought in
the first place.
[7]
By not filing an affidavit
opposing the relief sought in the founding affidavit, the respondents
have effectively failed to specifically
answer to the facts and
grounds upon which the
ex
parte
Anton Piller
application was granted in the first place.
[1]
Therefore, as the papers stand, the respondents do not seem to
contest the merits of the applicant’s
ex
parte
Anton Piller
application as the allegations contained in the founding affidavit
stand uncontested. However, what the
respondents strongly
contest in these proceedings is the manner in which the Anton Piller
order was executed.
The
case made out in the founding affidavit in the Anton Piller
application
[8]
Bera explained that the purpose of the application was to preserve
evidence
in the possession of the respondents with the view of
instituting further legal proceedings against them in order to: (i)
obtain
an interdict to prevent unlawful competition/ spring-boarding
and/or to claim damages for the last-mentioned conduct and/or, (ii)
institute proceedings for theft and/or fraud committed and/or, (iii)
claim damages for the theft and/or fraud committed.
[9]
The applicant conducts business in the carpentry industry rendering
goods
and/or services primarily to the emerging middle market. The
business mainly consists of cutting and edging wooden sheets to
carpenters
who do not have the necessary machinery; the selling of
whole wooden sheets to customers who do have the necessary machinery
to
cut same; and the selling of a wide range of cabinet hardware.
[10]
Until Adamson was removed as a
director at a shareholders as well as a directors’ meeting in
terms of section 71(1) of the
Companies Act
[2]
by way of an ordinary resolution as well as in terms of section
71(3)(b) of the Companies Act, Adamson was a director of the
applicant
until 3 July 2019. The basis of the removal was that
the trust relationship between the directors and the shareholders had
broken down with Adamson, subsequent to him making unlawful payments
from the applicant’s bank account.
[11]
A letter dated 20 May 2019 was addressed to Adamson in which it was
recorded that Adamson
was privy to and in control of the applicant’s
operations, payroll, financial statements and confidential
information. It
was further recorded that it came to the
attention of the applicant that fraudulent payments were made by the
applicant to “DS”
without any proof of invoice or
substantiation that services and/or goods were rendered by “DS”
to the applicant. Adamson
was requested to submit proof in
respect of the aforementioned payments as well as to allow access to
any confidential information
including the financial statements of
the applicant. Adamson was warned that should he not comply
with these requests the
applicant will have no option but to approach
the High Court on an urgent basis for the appropriate relief. There
was no
response to this letter.
[12]
A further letter was addressed to Adamson on 7 June 2019 reiterating
the fact that no proof
of the requested invoices had been received.
Adamson was, once again, urged to comply with the request. The
attorneys on
behalf of Adamson responded insisting that the
allegations of fraud and/or unlawful conduct were denied. Despite
these emphatic
denials, the applicant persisted in its founding
affidavit with the allegation that Adamson misappropriated or wasted
the applicant’s
assets and that he acted in a manner that was
fraudulent or otherwise illegal.
[13]
At the time Adamson was removed as a director on 3 July 2019 for the
reasons set out above,
he was still an employee and mainly in control
of the applicant’s operations. As such, Adamson had
access to confidential
information of the applicant such as all
records pertaining to the applicant’s clients, employees, bank
accounts, financial
statements, financial systems and all records
pertaining to price lists of goods and/or services rendered by the
applicant.
[14]
Adamson resigned on 13 June 2019. Bera states in his founding
affidavit that he has
reason to believe that Adamson is now an
employee of Discount and relies on the fact that on 21 June 2019, a
document containing
a list of 12 employees of the applicant who all
resigned on 1 June 2019 was conveyed to the applicant. Following
these resignations,
a letter of demand dated 8 July 2019 was sent to
Adamson. In this letter it is recorded that various employees
had resigned
at the instance of Adamson. It is further recorded that
an entity (with which Adamson is involved with) had already commenced
business
in direct competition with the applicant. Adamson was
requested to provide a written undertaking to the applicant not to
remove
any property, assets and confidential information from the
premises of the applicant and to refrain from competing unlawfully
with
the applicant by using the applicant’s confidential client
information and soliciting its clients. Adamson was warned that
should such an undertaking not be forthcoming; the applicant would
consider pursuing various legal remedies. To date, no
reply or
undertaking has been forthcoming.
[15]
On 11 July 2019 Bera attended to Discount’s premises. He
noticed various erstwhile
employees of the applicant on the premises
and also noticed that Discount rendered the same services as the
applicant. Bera also
made use of a “mystery shopper” to
buy goods from Discount in order to determine how Discount operated.
Following receipt
of these transactions, Bera determined that
Discount directly and unlawfully competed with the applicant. Two
of the applicant’s
clients also confirmed to Bera that Adamson
had approached them in an attempt to convince them to transfer their
business with
the applicant to Discount.
[16]
Addressing the requirements of an Anton Piller order, Bera explained
to the Court that
the applicant intends to apply for an interdict
against the respondents to prevent them from competing with it and
that, if the
necessary evidence can be obtained, to then quantify a
claim for damages against the respondents. Bera explained that it is
unknown
to him which electronic devices were used to solicit clients
and whether the applicant’s confidential information has been
transferred to any other electronic devices. Bera further
explained that the applicant entertains a well-founded apprehension
that the aforementioned evidence will be destroyed or spirited away
if the respondents become aware that such information, if found
in
their possession, will support the intended legal actions to be
instituted by the applicant against them.
[17]
In his founding affidavit Bera also addressed the various
requirements as set out in the
Practice Manual applicable to this
division pertaining to,
inter alia
, the hours of execution,
the presence of the sheriff, a representative of the applicant (Bera
himself), a representative of the
applicant’s attorney of
record, an independent attorney and a computer operator nominated by
the applicants.
The
Court order
[18]
It was on the strength of what is contained in the founding affidavit
of Bera that this
Court exercised its discretion to grant the Anton
Piller order. The order granted follows in broad terms the
Practice Manual
of the Gauteng Division of the High Court. Of
particular relevance to this matter is the following: The order
refers to the
address as being at 337 Dykor Street, Silverton
Pretoria as well as the home address of Adamson. In terms of
the order, the
respondents shall grant access to the following
persons: The Sheriff, Mohammed Ismail Bera (the director of Houston –
“Bera”),
Mark David Commons (duly appointed assistant
agent of Houston – “Commons”); Norman Werner Loock
(the applicant’s
local correspondent attorney – “Loock”);
Lourens Johannes Grobler (independent attorney – “Grobler”
– who attended the search at Adamson’s house), Ryan
Willemse (independent attorney – ”Willemse” –
who attended the search at Discount) and a computer operator
nominated by the applicant.
The
urgent application for reconsideration
[19]
As already pointed out, instead of filing an answering affidavit
responding to the allegations
made in the Anton Piller application,
the respondents filed an urgent application for a reconsideration of
the order.
[20]
Apart from denying the allegations of fraud and theft and an attempt
by Adamson to explain
the allegations of irregular payments, the bulk
of the affidavit deals with alleged irregularities conducted during
the search.
Furthermore, apart from stating that Discount renders the
same services and various additional services which the applicant is
unable to render, what is not properly addressed in the urgent
application are the allegations of unfair competition contained in
the applicant’s founding affidavit.
Grounds
for reconsideration
[21]
In essence, the respondents are claiming that the search is tainted
by various procedural
irregularities to such an extent that the order
should be reconsidered and set aside.
General
principles
[22]
Before I turn to a brief consideration of some of
the procedural complaints, it is necessary to briefly restate the
principles that
inform Anton Piller applications and thereafter
consider the merits of this application against this background.
[23]
An
Anton Piller order derives its name from English law in the matter
of
Anton
Piller KG v Manufacturing Processes Ltd and Others
.
[3]
In essence, this order allows the applicant to enter the premises of
the respondent for the purposes of inspecting, removing or
making
copies of documents belonging to the respondent.
[24]
The court has the
exclusive jurisdiction to grant such an order on an
ex
parte
basis in
circumstances where there is a real danger that relevant documents
and/or property may be removed or that vital evidence
may be
destroyed.
[25]
The
object therefore is the preservation or protection of evidence –
not the removal of evidence – pending proceedings
already
instituted or to be instituted.
[4]
The purpose of the order is not to allow the applicant to embark on a
fishing expedition.
[26]
The
essential requirements for an Anton Piller order have been stated by
the Appellate Division (as it then was) in
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam, and
Another; Maphanga v Officer Commanding, South African Police
Murder
and Robbery Unit, Pietermaritzburg, and Others
[5]
as follows:
“
In
my view, it should; and I would define what an applicant for
such an order, obtained
in
camera
and without notice to
the respondent, must
prima
facie
establish, as the
following:
(1)
That he, the applicant, has a cause of action against the
respondent which he intends to pursue;
(2)
that the respondent has in his possession specific (and specified)
documents or things which constitute vital evidence in substantiation
of applicant's cause of action (but in respect of which applicant
cannot claim a real or personal right); and
(3)
that there is a real and well-founded apprehension that this evidence
may be hidden or destroyed or in some manner be spirited
away by the
time the case comes to trial or to the stage of discovery.”
[27]
It goes without saying
that, due to the potential “draconian” effect of this
order, a court will only grant such an
order under strict
circumstances and with due provision for certain safeguards against
abuse.
Such circumspection is required
since the granting of an Anton Piller order has enormous potential to
harm.
[28]
It
is therefore accepted
by
our courts that these types of searches may impact negatively on a
person and may also cause inconvenience. But, there must be
a balance
between the competing interests as pointed out by the court in
Non-Detonating
Solutions (Pty) Ltd v Durie and Another
[6]
the Supreme Court of Appeal (SCA) –
“
[20]
While it must be acknowledged that Anton Piller orders have
the potential to impact negatively
on the right to privacy
guaranteed in s 14 of the Constitution, they are necessary and
proportionate to the legitimate aim pursued.
Whatever harm or
inconvenience might be caused to the respondent can be attenuated by
the inherent principle of proportionality
which requires a balancing
of competing interests and values. This resonates with what
Chaskalson P stated in
S v Makwanyane and Another
, that the
limitation of constitutional rights for a purpose that is reasonable
and necessary in a democratic society involves the
weighing up of
competing values and ultimately an assessment based on
proportionality. Thus Corbett CJ recognised that in exercising
its discretion whether or not to grant an Anton Piller order,
the court must pay regard to,
inter alia
, the cogency of the
prima facie
case established, and the —
'potential harm that will
be suffered by the respondent if the remedy is granted as compared
with, or balanced against, the potential
harm to the applicant if the
remedy is withheld'.”
[29]
It is also
required that the order must be “meticulously executed”
according to the letter of the order. This was emphasised
by the
court in
Petre
& Madco (Pty) Ltd t/a T-Chem v Sanderson-Kasner and Others
:
[7]
“
What
seems to be obvious, is that if one is to have the type of remedy
provided by the
Anton
Piller
procedure at all one
must see to it that it is meticulously executed according to the
letter of the order.
This
was emphasised in the decision of the Court of Appeal in
Anton
Piller KG v Manufacturing Processes Ltd and Others
[1976]
1
All ER 779.
The Court was only prepared to permit the procedure in
"an extreme case" where it was essential that the plaintiff
should
have inspection so that justice might not be defeated by the
destruction or removal of vital evidence. And then the order might
be
granted, so it would seem, only if the inspection would do no
real harm to the defendant or his case.
ORMROD
LJ thought that the order sought was "at the extremity of this
Court's powers" and stressed that "great responsibility
rested on the solicitors for the plaintiff to ensure that the
carrying out of such an order is meticulously carefully done".
The
order has enormous potential for harm, particularly since it would
frequently be granted at the instance of a competitor who
would not
be astute to see that no harm comes to the respondent.
Severe
sanctions are necessary to curb any abuse of stringent remedies. An
unruly horse needs to be kept on a tight rein.”
[30]
In applying
for an order on an
ex
parte
basis, an applicant has a duty to make full disclosure of any facts
that might, not would, affect the decision of the court whether
or
not to grant the relief sought.
[8]
In
Non-Detonating
Solutions
the court held that –
“
[18] The
use of
Anton Piller
orders
in our law is now well established. The requirements that must
be satisfied for the granting of such an order
were summed up by
Corbett JA in
Universal City
Studios Inc v Network Video (Pty) Ltd
, as
follows:
'In
a case where the applicant can establish prima facie that he has a
cause of action against the respondent which he intends to
pursue,
that the respondent has in his possession specific documents or
things which constitute vital evidence in substantiation
of the
applicant's cause of action (but in respect of which the
applicant can claim no real or personal right), that there
is a real
and well-founded apprehension that this evidence may be hidden or
destroyed or in some manner spirited away by the time
the case comes
to trial, or at any rate to the stage of discovery, and the applicant
asks the Court to make an order designed to
preserve the evidence in
some way . . . '”.
[9]
[31]
Regarding the requirement of a
prima
facie
case, the court in
Non-Detonating
Solutions
explained:
“
[21] The
requirement of a
prima facie
cause of action is simply that an
applicant should show no more than that there is evidence which,
if accepted, will establish
a cause of action. In
Bradbury
Gretorex Co (Colonial) Ltd v Standard Trading Co (Pty) Ltd,
Steyn
J, said the following:
'[T]he
requirement of a
prima
facie
cause
of action . . . is satisfied where there is evidence which, if
accepted, will show a cause of action. The mere
fact that such
evidence is contradicted would not disentitle the applicant to the
remedy. Even where the probabilities are against
him, the requirement
would still be satisfied. It is only where it is quite clear that he
has no action, or cannot succeed, that
an attachment should be
refused or discharged on the ground here in question.
'”
[10]
[32]
Where
serious irregularities occur in the execution of an Anton Piller
order, such order may render it susceptible to being discharged
on a
reconsideration of the initial order
.
[11]
The rule will likewise be discharged where it was more onerous or
far-reaching than was necessary to protect the interests of the
respondent.
[12]
[33]
I shall now return
to the facts of the present matter and the specific complaints raised
by the respondents.
The
order granted was contrary to practice and the common law and the
execution thereof was irregular
[34]
The respondents, relying on a host of factors,
claim that the execution of the Anton Piller order was irregular in
that: the applicant
used the Anton Piller proceedings to intimidate
and humiliate the respondents; the order granted was contrary to
practice and common
law; the applicant’s representatives
partook in and led the search; the applicant’s representatives
video recorded
and photographed the search and the documents seized;
the search was conducted contrary to the common law and in the most
oppressive
manner possible; the supervising attorneys not only failed
to protect the respondents’ rights during the execution of the
order, they in turn failed to act independently and failed to stop
the patently illegal search; the Sheriffs failed to stop the
patently
illegal searches; the incorrect address was cited in the application;
the search was conducted with the assistance of
a locksmith; there
was an employee of the applicant on site; the computer experts were
not named in the order and were merely described
in vaguest of terms;
the computer experts mirror imaged devices that were removed during
the searches despite the order not authorising
same; electronic
devices as well as mirror imaging was removed; the search parties
inspected various documents and electronic devices
at the properties;
the applicant seized more than it was entitled to; and the police
were summoned to the premises to assist with
the search.
[35]
Save for the complaint about Commons and Bera
having actively participated in the search, none of these complaints
have any merit.
(I will return to the complaint about Commons
in Bera herein below.)
[36]
Briefly, regarding the allegation that a
locksmith was used, it was conceded on behalf of the respondents that
no locks were cut
and that access was eventually granted by Mr.
Engelbrecht. It was also common cause that the locksmith
remained outside of
the premises during the search.
[37]
Regarding the allegation that the police was
present, it is common cause that both parties to this matter
requested the presence
of the South African Police Service (SAPS).
Upon their arrival, the SAPS were informed of the Anton Piller
order granted
and to be executed. Despite their presence, the
SAPS remained outside of the premises and did not partake in the
search.
[38]
The applicant denies that the computer
experts mirror imaged devices that were removed. The applicant
admits that mirror images
were made on external devices. In
this regard Grobler (the independent attorney who was present at the
search of Adamson’s
house) confirmed that he inquired from the
computer technician whether any information that was copied on the
separate hard drive
was also stored in any way on the computer used
to create such an image, to which he replied “no”. In
the written
report compiled by Willemse (the independent attorney who
was present at the search of Discount), he details the process that
was
followed. He commences his report by stating that the
respondents initially refused access by locking the gate to the
premises.
The Sheriff then attempted to gain access but was
refused access. Only then was the locksmith contacted by the
Sheriff.
Bera also then attended to the Silverton Police station to
require assistance. One of Bera’s employees was also grabbed
around
the throat by an employee of Discount. He was released after
bystanders intervened. That same employee of Discount then returned
with a short club which he used to point at Bera. Engelbrecht
finally granted access to the group. Willemse confirms
in his
report that numerous documents were attached which reflected the name
and details of Houston. A computer hard drive
was pointed out
and attached. The computer expert then made a forensic copy of
the hard drive and the hard drive was removed
by the Sheriff.
Willemse also states that Bera saw blades in the factory which
he (Bera) claimed belonged to Houston. Willemse,
however,
informed Bera that the blades fell outside of the scope of the order.
[39]
The Sheriff completed an inventory of the
documents and electronic devices attached. It is apparent from
the inventory that
the various documents attached and referred to by
the Sheriff in the inventory as “quotes etc” reflect the
name and
details of the applicant. Two evidence bags were also
identified containing a desktop computer and a cellphone.
[40]
It was common cause
that the street number of Discount was incorrectly stated in the
Notice of Motion as 337 Dykor Street, Silverton
whereas the correct
street number is 333. What is not in dispute is the fact that
the search was done at the correct premises.
The applicant explained,
with reference to photographs of the outside of the premises, that
although the street number was incorrect,
there was only one business
in Dykor Street with the name of the second respondent, Discount, and
the premises of Discount were
clearly indicated with a signage board.
The premises are further described in the founding affidavit in
the Anton Piller
order as being approximately a 100 meters away from
the applicant’s premises. Having regard to these facts, I am
not persuaded
that the complaint about the street number has merit.
It is certainly not the allegation that the court order was
executed
at another or different entity.
[41]
Regarding the search
at Adamson’s house, the independent attorney, Grobler, filed a
report detailing the manner in which the
search was conducted.
Grobler notes that he did enquire from Adamson whether he
wished his attorney to be present whereafter
Adamson indicated that
he did not want to wait and that the search may continue. Grobler
then details the search process
as well as the manner in which the
boxes containing the evidence were sealed and marked. He notes
that Adamson expressed
his satisfaction with the manner in which the
boxes were sealed and marked. Grobler also confirms that an image was
made of Adamson’s
personal computer (a laptop). Grobler
confirms that Adamson requested that his personal computer and phone
be copied but that the
computer and his phone should remain on the
premises. Grobler communicated with Adamson’s attorney
(Mr. McLaughlin)
and explained to him why the computer and the
cellphone had to be removed. Before his cellphone was sealed,
Adamson was allowed
to use the cellphone and take down emergency
contact numbers and the contact information of persons with whom he
was negotiating
a housing contract in Mozambique.
[42]
The applicant denies
the allegation that video recordings were made or that photographs
were taken during the execution. This
is also confirmed by the
Sheriff in his confirmatory affidavit.
Presence
of an attorney
[43]
One of the built in protections
against the abuse of an Anton Piller order in light of the
invasiveness of this type of order is
the requirement that there must
be an independent attorney present to supervise the execution
process. The supervising attorney
acts as an officer of the court and
is required to account to the court on the process that was
followed.
[13]
[44]
The appointed Sheriff is likewise an officer of the court with no
personal interest in
the matter. It is therefore similarly
important to have regard to the contents of the affidavits filed by
the Sheriff in
respect of the execution process that was followed.
[45]
One of the complaints raised in Court in argument was to the effect
that the applicant’s
(own) attorney may not be present during
the search. It was argued that the applicant’s attorney (Loock)
was however present
during the search.
[46]
The respondents
based their argument principally on the decision of the SCA in
Memory
Institute SA CC t/a SA Memory Institute v Hansen and Others
where the role of attorneys is,
inter
alia
, discussed:
“
[3] The
order granted provided for the removal of goods (such as a computer)
by the Sheriff (with the police's assistance if need
be - why, we are
not told) and the handing over of them to the appellant. Duly armed
with the order the Sheriff, Mr Van Vuuren
(a member of the appellant)
and the attorney proceeded to the Hansen residence and took what they
wanted. I shall deal with this
in a few words without references
since those who care to look can find them easily.
Anton
Piller
orders
are for the preservation of evidence and are not a substitute for
possessory or proprietary claims. They require built-in
protection
measures such as the appointment of an independent attorney to
supervise the execution of the order. An applicant
and the own
attorney are not to be part of the search party. The goods seized
should be kept in the possession of the Sheriff pending
the Court's
determination. Since it is the duty of an applicant to ensure that
the order applied for does not go beyond what is
permitted (something
that was not done in this case) and since Musi J granted a
rule
nisi
he
was not empowered to grant, the setting aside of the rule had to
follow as a matter of course (as happened when Van
Coller J
discharged the rule).”
[14]
[47]
I am in agreement
with what the SCA held in respect of an applicant’s own
attorneys not being allowed to participate in the
search. The reason
for that is sound: It can hardly be said that a search is legal if a
supervising attorney actively takes part
in the search. However,
I do not read the judgment in
Memory
Institute SA CC
to say that the
applicant’s attorneys may not be present as submitted on behalf
of the respondents. The court held that
they may not be “part
of the search party”. The court did not hold that they
may not be present or not allowed
access.
[48]
I have also perused
the Practice Manual of both the Gauteng Division, Pretoria and that
of the Gauteng Local Division, Johannesburg.
The latter is more
comprehensive in that the duties of the independent supervising
attorney are more detailed than what is contained
in the Practice
Manual of the Gauteng Division, Pretoria. If regard is had to the
Practice Manual of the Gauteng Local Division,
Johannesburg, it
provides that the following persons shall be granted access to the
premises: (i) the sheriff; (ii) the independent
supervising attorney;
(iii) the forensic expert and (iv) a representative of the applicant
and/or the applicant’s attorney
who shall not take part in the
search, but may be called upon by those mentioned in (i) –
(iii) to identify the documents
falling within the evidence referred
to in the order. Only when an applicant’s own attorney is
requested to assist,
may he or she be requested to identify a
document.
[49]
Therefore, although
the applicant’s own attorney may be present as set out in the
Practice Manual, the principle that the
applicant’s attorney
may not participate in the search for the reasons set out in the
Memory Institute
SA CC
matter,
remains intact.
[50]
In the present
matter the allegation is not that the supervising attorneys partook
in the search. What the respondents are saying
is that the
supervising attorney (Grobler) failed to protect their rights and
failed to stop a patently illegal search. This
is denied by the
applicant. From the detailed report by Grobler, there is no evidence
substantiating the allegation that he partook
in the search and/or
that he failed to protect the rights of Adamson. In fact, he
explains in his report that Adamson had
contacted his attorney (Mr.
McLauglin). The phone was handed to him (Grobler) whereafter he
informed McLauglin that he was the
appointed independent attorney.
After he had explained to McLauglin what was contained in the order,
the phone was handed back
to Adamson. After Adamson had concluded his
conversation with his attorney, he unlocked the gate and gave access
to Grobler, Commons,
Loock, Mr. Dewald Jansen (the computer
technician) and Deputy-Sheriff Steven. Grobler specifically asked
Adamson whether he wished
to wait for his attorney to be present
whereupon he said that he did not want to wait for his attorney and
that that the search
may continue. Grobler further explains in
some detail how the electronic devices were examined and how images
of Adamson’s
computer were made and stored. I have already
referred to the report by Willemse.
Allegation
that Commons and Beira took part in the search
[51]
Various allegations
are made in respect of the active participation of both Commons and
Bera in the search. Some of the allegations
are the following:
a)
Commons personally searched Adamson’s
home and was in fact leading the search. The fact that Commons
and Bera partook
in the search is not denied by the applicant. All
that is denied is that he was leading the search. Bera states
the
following:
“
Save
to admit that Mr Commons and I partook in the search as authorised by
the court order, it is denied that we led the search
for whatever
that may portray”.
b)
Commons was handed lever arch files at Adamson’s
house. The allegation further is that Commons sat perusing each file
for
a substantial period of time. These allegations are not
denied by the applicant.
c)
Commons also directed to the Sheriff what was to
be attached. This allegation is not denied. In fact, the applicant
states that
all persons mentioned in the order were authorised to
search, to examine and identify documents and that the Sheriff was
authorised
to attach and remove any document or device pointed out by
the aforesaid authorised persons.
d)
Bera identified certain boxes to Commons
and stated to him that same contained job cards of wood cuttings.
The applicant merely
notes these allegations and persists with
the contention that all persons were authorised to execute the court
order and act in
terms of the parameters of the court order granted.
e)
Bera entered the premises of Discount and
went into the offices and started searching. The allegation is also
made that Bera searched
the offices of MLC Accountants who were also
on the premises. Bera was unaccompanied by the Sheriff or the
supervising attorney.
These allegations are not denied by the
applicant. It is merely reiterated that the persons authorised in the
court order were
permitted to execute the order.
[52]
I reiterate what I
have already indicated. It is primarily the task of the Sheriff
to search and attach the documents or devices
identified in the
order. This is however not what happened here and the principle as
laid down by the SCA in
Memory
Institute SA CC
that
“[a]n applicant and the own attorney are not to be part of
the search party” was therefore not adhered to.
[53]
The
mere fact that an order allows for certain individuals to be granted
access to a property for the purpose of having access to
documents or
evidence necessary to be preserved does not mean that the order gives
carte
blanche
to everyone to embark on a fishing expedition and actively partakes
in the search. An
Anton
Piller
order
should be meticulously executed and the execution thereof should not
go further than strictly necessary for the preservation
of the
critical evidence. The reason for this is evident: “Because
of the highly invasive nature of such orders execution
thereof must
be meticulous and strictly according to the letter thereof.”
[15]
[54]
Although I am
satisfied that the applicant has made out a case for the granting of
the Anton Piller order, the execution of the
order, in my, was so
flawed that it warrants the setting aside of the order: Bera and
Commons overstepped the boundaries when they
embarked on a frolic of
their own. As already pointed out, the mere fact that they were
allowed to be present during the
search did not entitle them to usurp
the powers of the Sheriff. The supervising attorneys should not
have allowed Common
and Bera to have acted in the way that they did.
In this regard I am in agreement with what the court in
Audio
Vehicle Systems
stated:
“
[23] The
governing principle would appear to be that the more drastic and
potentially harmful the remedy may be, the more closely
it has to be
scrutinised by the court and the more meticulously it must be applied
and executed.”
[16]
[55]
The order granted
therefore falls to be set aside. Despite the irregularities, I
am not persuaded that a costs order on a
punitive scale is warranted.
Order
[56]
In the result the
following order is made:
1.
The order granted on
18 July 2019 is set aside.
2.
The applicant
(
Houston Group (Pty) Ltd)
to
pay the costs of the application.
A.C.
BASSON
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
Appearances
For
Applicant
in
ex parte
application:
Adv. M Bronkhorst
Instructed
by:
Westly McLaughlin Attorneys
For
Respondents
in
ex parte
application:
Adv. D Block
Instructed
by:
Jassat Attorneys
Date
of Judgment:
17 February 2020
[1]
The court in
McHendry v
Greeff and Another
[2015]
JOL 34291
(KZD) at para 8.4 explained the purpose of an
answering/opposing affidavit: “... the requirements for a
respondent’s
answering affidavit, which deals with the
allegations contained in the opponent’s founding affidavit,
are the same as that
for the applicant. If the respondents’
affidavit fails to admit or deny, or confess and avoid, allegations
in the applicant’s
affidavit, the Court will for the purposes
of the application, accept the applicant’s allegations as
correct.”
[2]
71 of 2008.
[3]
[1976] 1 All ER 779.
[4]
Shoba
v Officer Commanding
,
Temporary
Police Camp, Wagendrift Dam, and Another; Maphanga v Officer
Commanding, South African Police Murder and Robbery Unit,
Pietermaritzburg, and Others
1995
(4) SA 1
(A)
at
15F – 16C.
[5]
Ibid
at
15G –
I.
[6]
2016 (3) SA 445
(SCA) at 453E – 454B.
[7]
1984 (3) SA 850
(W) at 855 A – D.
[8]
See
National Director of Public
Prosecutions v Basson
2002
(1) SA 419 (SCA
)
at
para 21;
Frangos v
CorpCapital Ltd
2004 (2)
SA 643
(T) at 649C – E and
Schlesinger
v Schlesinger
1979 (4) SA
342
(W) at 348E-349B.
[9]
Non-Detonating Solutions
supra
n 6 at 453B-E.
[10]
Ibid
at
454C-E.
[11]
Audio
Vehicle Systems v Whitfield and another
2007 (1) SA 434 (C).
[12]
Ibid
at
443A - D
:
“[21] Such an order may be granted, in appropriate
circumstances,
ex
parte
. However, it must be
borne in mind that, an
ex
parte
application
by its nature requires the utmost good faith on the part of the
applicant. A failure on the part of the applicant
to make full and
fair disclosure of all material facts may lead the court to set
aside the rule
nisi
on
that ground alone (
Frangos
v CorpCapital Ltd and Others
2004
(2) SA 643
(T)
([2004]
2 All SA 146)
at 649C - G (SA)). In exercising its discretion to
grant an Anton Piller order, the Court will also consider
whether
the terms of the order sought are no more onerous or
far-reaching than is necessary to protect the interests of the
applicant.
Wilfulness or mala fides need not be present to
result in the discharge of a rule
nisi
where
the original order was too widely framed. In these
circumstances it is for the applicant to establish cogent
reasons as
to why the order should not be discharged. Where the court
reconsiders an Anton Piller-type order in terms of
Rule
6(12)(c) and it appears that the application was an abuse of
the process of Court, the court may in its discretion
order the
applicant to pay costs on an attorney and own client scale.”
[13]
Mathias
International Ltd and Another v Baillache and Others
2015 (2) SA 357
(WCC)
at
para 27.
[14]
2004 (2)
SA 630
(SCA) at 633D - G.
[15]
Audio
Vehicle Systems supra
n
11 at para 23.
[16]
Ibid
at
443G.