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[2018] ZAGPJHC 703
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City of Johannesburg and Another v Matebese (26514/17) [2018] ZAGPJHC 703 (20 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 26514/17
In the matter
between:
CITY
OF
JOHANNESBURG
First
Applicant
METROPOLITAN
TRADING
COMPANY
Second
Applicant
and
MATEBESE,
ZOLANI
LOYISO
Respondent
J U D G M E N T
MODIBA,
J
:
[1] On 20 July 2017 Van der Linde J
granted an Anton Pillar order
ex parte
, allowing the
applicants, the sheriff, the supervising attorney and two computer
experts access to several devises belonging to
the respondent for the
purpose of making mirror copies of information stored in or to access
the said information through those
devices. The applicants seek to
have that order varied and supplemented. The respondent opposes
the application.
[2] Van der Linde J granted the above
order being satisfied that the applicants had made out a case for it.
His opposition to this
application attempts to go behind Van der
Linde J’s order to mount an opposition to it. Be that as it
may, his opposition
lacks merit because:
2.1 He did not avail himself of the
opportunity he had in terms of Uniform Rule 6 (12) (c) to have the
order reconsidered on 24
hours’ notice to the applicants.
2.2 He undertook to fully cooperate
with the applicant in ensuring that they access information that
belongs to them from the devices,
essentially abiding by Van der
Linde J’s order.
2.3 He accepted the designation of Mr
Mkhabela in terms of the said order as the independent supervising
attorney to oversee the
execution of the Anton Pillar order.
2.4 He participated in the execution
process which unfolded over a period of approximately 3
months.
2.5 He does not challenge Mr
Mkhabela’s report on the execution process, filed in terms of
paragraph 9 of the Anton Pillar
order.
2.6 The reason why he only opposed the
application at this stage is not set out in his opposing affidavit.
It was advanced by his
counsel from the bar. He submitted that he
decided to cooperate then and not oppose the order because he is an
individual, fought
an unequal legal battle with one junior advocate
facing two senior counsel and a junior counsel representing the
applicants. This
made the battle insurmountable for him. His
counsel further submitted that he cannot continue to fold his arms
while the
applicants seek to invade his privacy by gaining access to
his private information stored on the said devices. This reason is
improperly
advanced. For that reason, it does not merit the attention
of this Court.
[3] The basis for the Anton Pillar
order is laid out in the founding affidavit filed in the application
that served before Van der
Linde J. The two applications are
brought under the same case number. In the founding affidavit
filed in respect of
the variation application, the applicants make
reference to the said founding affidavit.
[4] The respondent’s opposing
affidavit fails to answer to the first founding affidavit. From the
bar the respondent’s
counsel argued that the applicants failed
to make out a case in their founding affidavit and only did so in
reply. The case for
the Anton Pillar order is clearly made out in the
first founding affidavit. The second affidavit need not repeat
that case.
It merely builds on it by setting out allegations
relating to the basis for the Anton Pillar order.
[5] In argument, the respondent’s
counsel made reference to the respondent’s Gmail account being
alluded to for the
first time in reply. This is not so. The use of
the respondent’s private email account for official purposes is
dealt with
extensively in the first founding affidavit. That
the respondent used the devices for official purpose is common
cause.
Pertinently, barely denied the allegation made in
paragraph 9 of the second founding affidavit that the devices are
likely to contain
evidence of wrongdoing relating to the BOT contract
and that such information belong to the applicants in terms of the
Group Information
Communication Technology and Information Management
Policies, Standards and Procedures (“
the ITC Policy
”).
[6] The circumstances that prevented
the applicant from successfully executing the order in the prescribed
period are confirmed
by the supervising attorney in his interim
report attached to the second founding affidavit. The report also
sets out the basis
on which the applicant would apply for a variation
order to allow for the full execution of Van der Linde J’s
order. The
respondent has not challenged this report.
[7] In the premises, I am satisfied
that the applicant has made out a case for the variation order to be
granted.
[8] The delay in handing down this
judgment is profusely regretted. I apologize to the parties for any
inconvenience or prejudice
this delay may have caused them. In the
relevant urgent court week, I dealt with several Anton Pillar
applications where I granted
orders in the same week. Ordinarily,
these applications are urgent. Since they are interlocutory in
nature, reasons are rarely
furnished. My registrar was on sick
leave during the said week and the reservation of this judgment was
not noted by the
relief registrar. I laboured under the erroneous
impression that I granted the order in the same week as I did in
other similar
matters. I was only alerted to this error when one of
the parties started making enquiries regarding the judgment. My
registrar
subsequently listened to the record to confirm that I had
reserved judgment. Given the time lapse since I heard the
application,
I had to obtain the record to re-appraise myself of the
submissions made on behalf of the parties. I attended to the judgment
as
soon as I could at the commencement of the end of the year recess.
ORDER
1.
The order granted by the
Honourable Mr Justice Van der Linde on 20 July 2017, under case
number 2017/26514 (“
the
Order
”) is
varied and supplemented in the respects set out hereunder.
2.
Riaan Bellingan
(“
Bellingan
”),
of Dynamdre Innovative Solutions (a provider of expert digital
forensics services),
alternatively
failing him, an expert or experts nominated by the applicants, is
authorised to:
2.1 inspect those devices and any
copies of the data thereon, or accessed by means thereof (such as
data hosted in the cloud, on
virtual servers, email applications or
any other data hosted locally or intentionally which the respondent
accessed by and/or had
control of by means of the devices), which
devices are held by the sheriff in terms of the Order;
2.2 carry out such procedures on the
devices and copies of the data thereon, or accessed by means thereof,
as may be necessary to:
2.2.1 make the requisite forensic
copies of all of the data on or accessed by means of the devices; and
2.2.2 ensure access to such forensic
copies of all of the data on or accessed by means of the devices for
purposes of the analysis
thereof, in terms of paragraph 6 below.
2.3 provide forensic copies of the
evidence (as “
evidence
” is defined in paragraph 6
below) on or accessed by means of the devices to:
2.3.1 the attorneys of the respondent
(one copy);
2.3.2 the attorneys of the applicants
(one copy);
2.3.3
the supervising attorney appointed in terms of the Order, Mr Leslie
Mkhabela,
alternatively
an
attorney nominated by him, in the employ of Mkhabela, Huntley
Attorneys Incorporated (“
the
independent attorney
”)
(two copies);
3.
Bellingan shall conduct
the above processes in the presence of:
3.1 the respondent, his attorney
and/or a cyber forensic expert appointed on his behalf,
3.2 the sheriff,
3.3 the independent attorney,
at the office of Dymandre (Pty) Ltd,
situated at Room 160, First Floor, Building 16, CSIR, 627 Meiring
Naude Road, Brummeria, Pretoria
on a date to be agreed between the
parties, but in any event before 30 January 2019.
4.
Bellingan is allowed to
access the devices, the data thereon or accessed by means thereof,
and any copies of the data thereon or
accessed by means thereof, to
execute the mandate given to him in terms of paragraph 2 above, as
the searching and sifting of copies
of all of the data on or accessed
by means of the devices will be conducted in accordance with
paragraph 6 below.
5.
The respondent is directed
forthwith, and in any event by no later than 21 December 2018 to
return to the independent attorney the
Apple iPhone 6S, Serial Number
F17QHAWPGRYG, IMEI no 35331307248542 for purposes of it, similar to
the other devices, being dealt
with by Bellingan in terms of this
order (specifically those procedures set out in paras 2 and 6 below).
6.
On a date to be agreed
between the parties,
alternatively
failing such agreement, a date designated by the Registrar of this
Court, the representatives of the applicants, with the assistance
of
Bellingan and/or other cyber forensic experts appointed by the
applicants, in the presence of the independent attorney, the
respondent or his representative, and such cyber forensic expert/s
appointed by the respondent, shall be entitled to attend the
searching and sifting through all of the forensic copies of all of
the data on or accessed by means of the devices seized in terms
of
the Order, including the cellphone specified in paragraph 5 above,
for the purposes of accessing and identifying the data:
6.1
belonging to the
applicants;
6.2
relevant to identifying
defendants, other than the respondent, in an action for damages
suffered by the applicant in consequence
of the unlawful award of the
tender to Ericsson and the re-appointment of Ericsson to the contract
(“
the impugned
contracts
”)
referred to in the founding affidavit of Shadrack Mongo Sibiya, filed
in support of the order and this application (“
the
damages action
”);
6.3
relevant to an action for
damages against the respondent for damages suffered by virtue of the
impugned contracts;
6.4
relevant to the review
application/s for the review and setting aside of the impugned
contracts, (“
the
evidence
”).
7.
The final determination of
what constitutes the evidence shall be made by the supervising
attorney, and any materials which do not
constitute the evidence
shall be returned to the respondent.
8.
The applicants are
directed to institute the damages action and any other legal
proceedings, including a review application to set
aside the impugned
contracts, within 60 days after the date of the completion of the
analysis.
L T
MODIBA
JUDGE OF THE
HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARENCES:
Applicant’s Counsel:
R. Solomon SC
K. Tsatsawane SC
M. Williams
Instructed by:
Mothle Jooma Sabdia Incorporated
Respondent’s Counsel:
A Nirelaw
Instructed by:
Clifford Levin Incorporated
Date
delivered:
20 December 2018