About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 83
|
|
4D Distribution Services (Pty) Ltd v Sandiford and Others (68405/2014) [2016] ZAGPPHC 83 (12 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF
SOUTH
AFRICA
CASE
NUMBER: 68405/2014
DATE:
12/2/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
4D
DISTRIBUTION SERVICES (PTY)
LTD
Applicant
and
TRENT
LUKE
SANDIFORD
First Respondent
CHARMAINE
BREYTENBACH Second
Respondent
RELENT
(PTY)
LTD Third
Respondent
TILLID
PROFESSIONAL ACCOUNTI NG SERVICES CC
Fourth Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
On 16 September 2014, Bertelsmann J issued an Anton Piller
order in favour of the applicant. The relevant portions of
the order
will be referred to infra.
[2]
The respondents are opposing the order and have set the matter down
for reconsideration. In view of the defences raised by the
respondents in their answering affidavit, the respondents pray that
the order be set aside with costs.
BACKGROU
ND
[3]
The applicant is a fully owned subsidiary of a company known as 4D
Financial Services (Pty) Ltd ("4D Financial Services").
[4]
4D Financial Services is the holding and controlling company of a
group of companies referred to as the 4D group. The group
specialises
in products related to the financial service industry.
[5]
During or about June 2012, the 4D Group was interested in expanding
its business by supplying new or additional services and
products. To
this end a meeting was set up with the first respondent.
[6]
At the meeting it was resolved that the applicant would be
established for the new venture and the first respondent, Mr Kruger,
deponent to the founding affidavit and Mr J Ebersohn, were appointed
as directors of the applicant . Save for the agreement pertaining
to
the formation of the applicant, the first respondent also signed a
restraint agreement in favour of the applicant and 4D Financial
Services.
[7]
The second respondent was an employee of the 4D Group for 16 years
and held the position of
de facto
General Financial
Manager. As such the second respondent was in complete and absolute
control of the applicants
S
AG
E
PA
Y
accounts, which accounts were utilised for the collection of
debit orders.
[8]
The second respondent resigned during May 2014 and her last day of
service was 13 June 2014. Subsequent to the second respondent's
resignation, the applicant discovered that the first and second
respondents has started to run a parallel business and to this
end,
has engaged certain of the clients of the applicant. It furthermore
appeared that some of the applicant's funds were channelled
into the
accounts of the first and second respondents.
[9]
Upon discovering the aforesaid, the applicant launched the present
Anton Pillar
application pending the institution of an action
against the first and second respondents.
EXECUTION
OF ORDER
[2]
The order was executed in the following manner:
i.
In respect of the first respondent:
On
17 September 2014 from 16:05 to 22:15, Mr van Niekerk ("van
Niekerk"), an independent attorney appointed in terms of
paragraph B 1 of the court order, Z v Aardt, the sheriff ("the
Sheriff') and Mr Vorster ("Vorster''), a computer operator
nominated by the Applicant in terms of paragraph B 1 of the court
order, executed the order at the premises of the first respondent.
In
this regard van Niekerk filed a report titled
"
REPORT
ON EXECUT
I
ON OFANTON
P
I
LLER
ORDER
ii.
In respect of the second respondent:
On
17 September 2014 from 16:58 to 20:09, Mr Hills ("Hills"),
an independent attorney appointed in terms of paragraph
C 1 of the
court order, Mr H Viljoen, the sheriff and Mr van Deventer ("van
Deventer''), a computer operator nominated by
the Applicant in terms
of paragraph C 1 of the court order, executed the order at the
premises of the second respondent. Van Niekerk
also filed a report in
respect of the execution of the order.
RECONSIDERATION
OF ORDER
[4]
Although various defences were raised in the respondents' answering
affidavits, the respondents confined their opposition of
the matter
to the manner in which the order was executed.
[5]
Mr Vorster, counsel for the applicant, addressed me at length in
respect of the principles applicable to the reconsideration
of an
Anton Piller order.
In view of the stance the
respondents took during argument, I do not deem it necessary to deal
with these principles. It is clear
that the granting of the order is
not in dispute, but rather the execution thereof.
PROCEDURAL
IMPROPRIETIES
[8]
Mr Zietsman, counsel for the respondents, contended that:
i.
the execution of the court order was not in accordance with the
order; and
ii.
the manner in which the execution was conducted was not in accordance
with prevailing
case law.
[10]
In respect of the execution of the order, the first respondent raises
the following procedural improprieties:
i.
the order was executed until 22:15, whereas the court order
stipulated that the
order may only be executed between 8:00 and
20:30;
ii.
Vorster is employed by the applicant
alternatively
a
company closely associated with the applicant, was therefore not
independent, but was actually representing that applicant during
the
execution of the order;
iii.
Vorster made a further copy of the material on the first respondent's
laptop
and installed a program that caused damage to the programs on
the first respondent's laptop.
[11]
The second respondent raises the same complaint, contained in para
[1O] ii
supra,
in respect of van Deventer.
Order
executed outside time line contained in order
[11]
The circumstances leading to the order being executed outside the
time limit contained in the court order, is explained by
van Niekerk
in his report, as follows:
"15.
The battery of the first respondent's laptop died at about 19:25
and at the request of the first respondent, it
was agreed that the
charger of the first respondent will be collected form his workplace
and be brought back to the premises for
the copying to restart. The
first respondent insisted and agreed to the continuance of the
copying of his laptop and waived and/or
confirmed that the parties
present can continue past 20h30 cut-off time as set out in the court
order as he needed his laptop the
following day and did not want the
sheriff to attach same."
[8]
In a supplementary affidavit deposed to by the first
respondent, he emphatically denies that he consented to the
execution of the court until 22:30. To this end, he states the
following:
"
4
.
7
M
y
c
o
n
s
e
nt
w
as
neith
e
r
so
u
ght
nor
ob
ta
ined
for
t
h
e
e
xecution
to
be done
u
ntil
2
2
:
3
0
.
To
t
he
contrary,
I
was
specific
a
lly informed t
h
at
t
h
e Court
O
rder
c
ould
only be
e
xecuted
u
nt
i
l
2
0
:30
w
hi
c
h is
w
h
y
I
t
o
l
d th
e
m
t
o
come
u
p
w
ith
a
noth
e
r plan
wh
e
n
m
y
l
a
ptop's
b
attery
went
f
l
at.
At t
h
at
st
a
ge
I
was
afraid
that
t
h
e
y
wou
l
d
t
ake
m
y
l
a
ptop
w
ith
th
e
m
to
complete
t
h
e
collection
of the information,
w
hi
c
h I
could not
a
llow
b
y reason of
m
y
business tr
i
p t
h
e
next
d
a
y.
"
[9]
Curiously, the version of the first respondent corresponds,
save for the alleged lack of consent, in
all
material respects with that of van Niekerk. On his own version and in
view of his business appointment the next day, the first
respondent
was anxious for the cloning process to be completed that evening. In
the circumstances, it is more probable that he
would have consented
to the order being executed outside the time line contained in the
order. The parties involved in the execution
of the order had no
pressing need to continue until 22:30.
[10]
Van Niekerk, was appointed in terms of the court order as an
independent attorney. He executed his duties as an officer of
court
and had nothing to gain from violating the court order. In the
premises, I have no hesitation in accepting his version of
events.
[9]
Mr Zietsman, however, contended that the mere fact that the order was
not meticulously executed, still constitutes a fatal flaw
in the
execution thereof and as a consequence the order should be set aside.
[10]
In
Audio
V
e
hicle
S
ystems
v
W
hitfi
e
ld
and Another
2007
(1) SA 434 C,
the court considered the effect of the non-compliance with a court
order and held as follows at para [23]:
1
2
3
]
S
im
i
l
a
r
r
i
gorous
con
t
ro
l
s
a
p
ply to
the
e
xecution of
t
he order.
Because
of the
highly invasive
n
ature
o
f
such orders
e
xecution
t
h
e
reof
must be
meticulous
and
s
t
rictly
accordi
n
g to
the
lett
e
r
thereof.
T
h
e test
in th
i
s
r
e
g
a
rd
is
whe
t
her the
e
xecution is
so
seriously f
l
awed
that
t
he
C
ourt
should
s
how
its
d
ispleasure or
d
i
s
a
p
proval
b
y
setti
n
g
a
side
t
he ord
e
r.
4
A
ser
i
ous f
l
aw
wou
l
d
include conduct that
c
ould
b
e
r
e
garded
a
s
b
l
a
t
antly
a
busive,
o
p
pressive or
conte
m
ptuous,
but
is
not
limited
to
conduct
o
f
such
e
xtreme
nature.
T
h
e
governing
principle wou
l
d
a
p
pear
to be that the more
d
r
a
stic
a
nd
pot
e
nt
i
a
l
ly
h
armful
the reme
d
y m
a
y b
e
, the more
cl
o
sely it has to be scrutin
i
sed
b
y
t
he
C
ourt
a
nd
t
he
more
meticulously it must be
a
p
plied
and
e
xecuted 0
[11]
On the facts of this matter, I find it difficult to characterise the
willingness of van Niekerk, Vorster and the Sheriff to
accommodate
the first respondent as conduct that is
"
bl
at
a
n
t
ly
abusive,
o
ppressive
or
cont
e
m
ptuous
[12]
I invited Mr Zietsman to indicate any prejudice the first respondent
could perceivably have suffered as a result of the extended
execution
of the order. Mr Zietsman could not provide a satisfactory answer. I
do not deem the fact that the court order was, at
the request of the
first respondent, executed outside the time limit contained in the
order, as a flaw so serious that it would
justify the setting aside
of the order.
[13]
In the premises, the first respondent's attack in this regard, must
fail.
Vorster
and van Oeventer closely linked to the applicant
[13]
The first and second respondents allege that Vorster and Van
Oeventer, both IT Specialists, are employees of the applicant
alternatively
employees within the 40 group. In the result,
the court order was not executed by independent persons, but by the
applicant itself,
which is in stark contrast to the terms of the
court order and contrary to prevailing case law.
[14]
The principal that an applicant may not be present during the
execution of an
An
t
on
Pill
e
r
order is well established. [See:
M
e
mory
I
nstitute
CC
t
/
a
S
A
M
emory
I
nstitute v
Ha
n
s
e
n
a
nd
Others
2004 (2) SA 630
SCA]. The reason for the aforesaid
principle is obvious and was explained in
Petre
&
M
a
d
co
(Pt
y
)
Ltd
t
/
a
T-
C
hem v
S
a
nd
e
rson-K
a
sner
1984 (3) SA 850
W at 8550:
'The
order has enormous potential for harm, particularly since it would
frequently be granted at the instance of a competitor who
would not
be to see no harm comes to the respondent "
[15]
The applicant in its replying affidavit pointed out that Vorster and
van Oeventer are employed by 40 Tech (Pty) Ltd ("40
Tech"),
an independent juristic entity that provides computer services to
companies in the 40 group as well as to other independent
clients.
[16]
In response to the aforesaid, the respondents filed further
affidavits setting out the structure of the 40 group, the fact
that
40 Tech shares the same building and infrastructure as the applicant,
that 40 Tech is financially dependent on the 40 Group
and that Mr
Ebersohn is a director of both the applicant and 40 Tech.
[17]
In the premises, the respondents submit that:
"The
Applicant and/or the 40 Group were no doubt in a position ofpower and
influence to request and demand from 40 Tech and
specifically Vorster
and
V
an Dev
e
n
t
e
r, to
ob
t
a
in u
n
author
i
sed
in
f
ormation and knowle
d
ge
a
bout
the Re
s
pond
e
nts
d
ur
i
ng
e
xecution
o
f
the
co
u
rt
order
on
1
5
S
e
pt
e
mb
e
r
2
0
1
4
.”
[18]
Both Vorster and van Deventer denied that they executed their duties
at the behest of the applicant. Vorster further explained
that he was
requested in the presence of the Sheriff to
perform certain keyword searches
to find documents
specified in the court order. He denies any impropriety and states as
follows:
"
I
acted
as
a
n
instrument
in
t
he
h
a
nds
of
the
d
e
puty
sh
e
r
i
ff
a
nd
d
id
no
more.
"
[19]
Vorster stated that he did not and still does not know the full
details of the dispute between the applicant and the first
respondent. By implication, he states that he would not know what
information would be important to the applicant.
[20]
Although the applicant and 40 Tech is in the same group of companies,
it is clear that their core business and expertise are
vastly
different.
[21]
I am satisfied that neither Vorster nor van Deventer was employees of
the applicant during the execution of the order. I am
also satisfied
that they acted independently and did not represent the applicant
during the execution of the order.
Vorster's
actions fall outside the scope of the court order
[22]
The first respondent's complaint in this regard is twofold:
i.
Vorster made a further copy of the material on the first respondent's
laptop;
and
ii.
he installed a program that caused damage to the programs on the
first respondent's
laptop.
[23]
In substantiation of the aforesaid allegations, the first respondent
relies firstly on a report obtained from a certain Corrie
Theron. The
applicant alluded to the fact that the report is not signed and that
Theron did not attest to a confirmatory affidavit.
Be that as it may,
the report is in any event inconclusive and does not support the
first respondent's contentions in this regard.
[24]
Secondly, the first respondent relies on a report compiled by a
certain Rudolf Pretorius ("Pretorius"), an IT Consultant.
Pretorius attested to an affidavit,
inter alia,
confirming the
contents of the report. Pretorius concludes the report with the
following note:
"
1
.
T
h
e
re
w
a
s no
allocated t
i
me for a full recovery scan
t
o see
w
h
at
was
u
sed/removed or inst
a
lled,
but
with f
u
r
t
h
e
r
investigation
we could see more
details.
"
[25]
Once again, the report does not confirm the first respondent's
speculative version.
[26]
Pretorius, however, goes further and states the following in respect
of Vorster:
2.4.
Vorster was extremely hesitant and uncomfortable to discuss the
matter with
me but later admitted that he indeed looked around the
computer of the First Respondent as he was instructed to do by the
Applicant
and that it was furthermore his instructions to obtain
information andprovide same to the Applicant. Vorster did not
confide
in me who of the Applicant gave him the aforementioned
instructions.
2..5
Vorster f
u
r
t
her a
d
mitted
t
h
at indeed h
e
provided informat
i
on
to t
h
e Applicant subsequent to the execution of the
court order on
17
S
e
ptemb
e
r
20
1
4
,
w
herefore
I
ma
d
e a conclusion
tha
t
a
f
u
r
t
her external hard
d
rive
was co
n
nected
t
o
t
he
co
m
puter of
t
h
e
F
irst Re
s
pondent onto
w
hich
in
f
ormation
was c
o
pied
and th
e
reafter furn
i
shed
t
o
t
h
e
Applic
a
nt.
2..6
T
h
e
st
e
ps
t
aken
b
y
V
orster
is
qui
t
e
a
p
parent
as
he
so
u
ght
t
o
hide
h
i
s conduct
b
y
f
i
rs
t
ly i
n
s
ta
l
l
i
n
g
t
he
s
h
re
d
d
e
r
program at
or
about
2
2
h
1
0,
but for
some
reason
w
as
not
able
to
remove
t
he
program
before
t
h
e
y
l
e
ft
t
he
premis
e
s
of
t
he
F
irst
Re
s
pondent.
2..7
A shre
dd
er
program
is
a
l
so ut
i
lised
to
recover
d
a
t
a t
h
at
h
ad
been
d
e
leted,
w
h
ere
such
d
a
t
a
cou
l
d
be
recovered
e
ither
t
o
t
h
e
hard
d
rive
of
t
he
vel}'
s
a
me
co
m
puter
or
to
an
ext
e
rn
a
l
h
a
rd
d
rive.
S
u
c
h
informa
t
ion would
t
h
e
n
a
lso
h
ave
been
downloaded
b
y
V
orster
and
th
e
reafter, handed
to
the
Applicant
2..8
I
e
xc
h
a
n
ged
numerous
messages
with
V
orster
in
relat
i
on
t
o
the aforementioned
incident,
but
unfortunately
lost
my
message
histol}'
in
J
an
u
al}'
of
20
1
5
w
h
en
m
y
te
l
e
phone
had
t
o
be
f
ormatted.
V
orst
e
r m
i
ght
st
i
ll
be
in
possession of
o
u
r
mess
a
ge
h
istory, but
I
d
o
u
bt
w
he
t
her
I
w
i
ll
get
h
is
co-
o
peration
at
t
h
is
st
a
ge
t
o
a
ga
i
n
f
u
rn
i
sh
me
t
herewith.
"
[27]
Vorster did rise to the occasion and annexed the messages to his
further affidavit. The messages do not confirm Pretorius's
version of
events. To the contrary and according to the attached messages,
Vorster said the following:
..
.Ekt
net
'n
ord
e
r
gevo
l
g en nou
prober
h
y
d
i
t
u
i
ma
a
k of
e
k kak
o
p
s
y l
a
pt
o
p
gedoen
het
om
hom te
incriminate, wat
bullshit
is.
"
"
D
a
ar
w
a
s
n
ie tyd
nie, na
d
ie
clone het ek net 'n
q
u
i
c
k
sweep
ge
d
o
e
n
e
n
a
ls v
i
r
d
ie
ba/ju
u
i
t
gewys.
"
“
ja
,
s
y
(referring to the sheriff)
w
a
s
d
a
a
r
toe
e
k
a
ls ge
d
o
e
n
het,
d
ie
b
a/ju is
d
a
a
r
om s
e
keer
te m
a
ak
a
ls
word l
e
git gedoen
e
n
d
a
a
rs nerens
probleme of uitbarstings nie.
"
[28]
Pretorius's version is clearly devoid of all truth and the first
respondent's third ground of opposition must fail.
CONCLUSION
[29]
In the premises Iam satisfied that the court order was properly
executed. COSTS
[30]
Mr Vorster referred to various contradictions in the affidavits
deposed to by the first and second respondents. In view of
the
aforesaid contradictions, he urged me to award a
punitive cost order against the
first
and second respondents .
[31]
Having regard to the principles applicable to attorney-and -client
cost orders, I am not convinced that the first and second
respondent's conduct in the present matter justify such an order.
ORDER
Imake
the following order:
The
application to rescind the order granted on 16 September 2014 is
dismissed with costs, such costs to be paid jointly and severally
by
the first and second respondents.
_______________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GA
ENG D
I
VISION, PRETORIA
Counsel
for the Applicant
Advocate Vorster
Instructed
by
Gerber Attorneys
Counsel
for the Respondent:
Advocate Zietsman
Instructed
by
Vermaak Beslaar Attorneys
Date
Heard
28 January 2016
Date
of Judgment