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[2016] ZAGPPHC 592
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Merchant West (Pty) Ltd v Sizwe Asset Finance (Pty) Ltd and Others (51715/16) [2016] ZAGPPHC 592 (15 July 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO: 51715/16
DATE:
15 JULY 2016
MERCHANT
WEST (PTY)
LTD
......................................................................................
APPLICANT
And
SIZWE
ASSET FINANCE (PTY) LTD & 4
OTHERS
...............................................
RESPONDENT
JUDGEMENT
This matter was dealt with as one
of urgency. First, second, fourth and fifth respondents (“the
respondents”) seek reconsideration
of an order granted on an
urgent basis in terms of Rule 6(12)(a) by this court on 1 July 2016
(as amended by an order by Bam J
dated 8 July 2016). The initial
application was held in camera and in the absence of the respondents.
The order the applicants
obtained against the respondents was the
Anton Piller type order. The reconsideration order is sought in terms
of Rule 6(12)(c),
which provides that a person against whom an order
was granted in his absence in an urgent application may by notice,
set down
the matter for reconsideration of the order. The application
is opposed.
Counsel for the respondents, in a
nutshell, submitted that I should consider the matter afresh in order
to determine whether or
not the initial order of De Vos J ought to
have been granted. Should I determine that the order should not have
been granted, then,
in terms of this court’s wide discretion,
the order should be set aside. It was argued that, had the correct
legal position
been presented to De Vos J, he would probably never
have granted the order in the first place. In essence, the order
granted was
defective and should be set aside as it defeats the
rationale of Anton Piller relief. Counsel for the respondents
submitted that
the application and order constitutes an abuse of the
process; that the order is unreasonable, unjustified and oppressive.
Furthermore,
that the application and order was aimed at vindicating
and/or possessory relief, which is impermissible as part of Anton
Piller
proceedings. The application and order amounted to a fishing
expedition, aimed at building up a case to be instituted by action
proceedings. The order obtained was fraught with mistakes,
contradictions, vagaries and was non-sensicle.
On the other hand, Mr Cohen, who
appeared for the applicants before De Vos J and in this court, argued
that the initial order was
correctly sought and obtained. It was
submitted that the submissions made on behalf of the respondents are
all mere technical in
nature and has nothing to do with the substance
of the original order obtained. It was submitted that with the facts
presented
to De Vos J in camera, the applicants were entitled to the
order. The sheriff had proceeded to seize and attach evidence for
preservation
and there is no reason for this court to reconsider,
afresh, the order granted on an urgent basis in the absence of the
respondents.
Furthermore, so the argument went, the third respondent
was not before me and the reconsideration order, should I so decide,
would
be of no force and effect because of his absence. The
respondents rushed to court for reconsideration of the order as it
was uncomfortable
with the evidence unearthed in its seizure of
evidence. In any event, the respondents are by no means prejudiced
because the evidence
is seized and preserved by the sheriff. The
applicants were entitled to approach the court for the Anton Piller
type order. Existing
proceedings were pending against the respondents
in the Gauteng Division of the High Court. The application was
brought to preserve
the evidence which the applicant believed would
be destroyed, copied, hidden, spirited away or deleted from
computers. These items
were essential for the applicants claims for
damages against the respondents. The respondents traded unlawfully
with the applicants,
to the applicants prejudice. By using the
applicants confidential information the respondents ensured the
survival of the first
respondent from an insolvent company to a
company making profit and now able to compete unlawfully with the
applicant.
It is common cause that the order
was granted in the absence of the respondents and that the order was
granted pursuant to an urgent
application in terms of Uniform Rule
6(12)(a). The respondents seeks reconsideration of the matter in
terms of Rule 6(12)(c) for
the order to be set aside in toto,
alternatively that the order be amended and cots on the punitive
scale.
Uniform Rule 6 (12) (c) :
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order.
The dominant purpose of the
sub-rule is to afford an aggrieved party a mechanism designed to
redress imbalances in and injustices
and oppression flowing from an
order granted as a of urgency in his absence. The court reconsidering
the order now has the benefit
of both sides of the story. In these
proceedings the court has a wide discretion to consider the matter
afresh, in deciding whether
or not the order by DE Vos J ought to
have been granted.
It is established law that Anton
Filler type orders are interim orders directed at the preservation of
evidence for trial purposes.
As
held by Corbett C J in Sheba v Officer Commanding, Temporary Police
Company,
1995 (4) SA 1(A)
15 G - J, that in order to obtain the order
an applicant must prima facie establish that:
(a)
The applicant has a cause of action
against the respondents that he intends to pursue;
(b)
That the respondent has in his
possession specific (and specified) documents and objects that
constitute vital evidence in substantiation
of the applicant’s
cause of action; and
(c)
There is a real and well-founded
apprehension that this evidence may be hidden or destroyed or in some
manner spirited away before
the case comes to court.
The attack against the order of
De Vos J is that it is vague and that the items seized is
unspecified, amounting to a fishing expedition
for the purpose of
getting information disguised as the seizure of evidence for trial
purposes. As directed in Shoba, the order
should contain prayers to
enable the sheriff to enter and search premises and to seize, attach
and remove specified material. In
this instance, the order allows the
sheriff to seize unspecified items, directly in conflict with the
position laid down in Shoba.
See
: Shoba (supra), page 15 J :
I
have used the words ‘vital evidence’ in the sense of
being evidence of great importance to the applicant’s case.
In
the case of Ex parte Motshini and Others
1986 (3) SA 605
E it was
held that in order to obtain an Anton Piller order the applicant
would have to show that the evidence was ‘essential’
or
‘absolutely necessary’ in order for him to prove his
claim and that its nonavailability at the trial would
result in
the administration of justice being defeated. As I suggested Jaffa’s
case, this poses too stringent a test.
The
court to which application is made for such an Anton Filler order has
a discretion whether to grant the remedy or not and, if
it does, upon
what terms. In exrcising this discretion the court will pay regard,
inter alia, to the cogency of the prima facie
case established, 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; and whether the terms of
the order sought are no more onerus
than is necessary to protect the
interests of the applicant.
See:
Memory Institute SA CC t/a SA Memory
Institute v Hansen
2004 (2) SA 630
at 633 F-G Anton Piller order 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 theown
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.
Audio Vehicle Systems v Whitfield and Another
2007 (1) SA 434
at 443 E : The terms of an Anton Piller order should
ordinarily not be so wide as to give the applicant access to
documents to
which the evidence does not show him or her to be
entitled. Nor should they go further than strictly necessary for the
preservation
of critical evidence. Mathias International v Baillche
2015 (2) SA 357
at 371 B The inappropriately wide cast net included
in the material described in the schedule to the order, resulted in
the search
authorised by the order granted by the application judge
being, in my view, in the nature of an impermissible fishing
expedition.
It failed materially to comply with the requirements of
specificity and essential evidence contained in the second of the
three
requirements described in Shoba.
Non-Detonating Solutions v Durie
2016 (3) SA
445
at 459 G – H In my view this approach is against clearly
established law which permits search and seizure orders for specific
classes of documents. The test for the identification of documents in
Anton Piller has been described as follows:
There
must be clear evidence that the respondent has such incriminating
documents, information, articles and the like in his possession,
or
that, at least, there are good grounds for believing that this is the
case. The applicant should satisfy the court that he has
- at best
the subject matter in dispute permits him to do - identified the
subject matter in respect of which he seeks attachment
and for
removal, and that the terms of the order which he seeks have been
delimited appropriately and are not so general and wide
as to afford
him access to documents, information and articles to which his
evidence has not shown to be entitled.
The
matter comes before me for the reconsideration of the Anton Piller
order granted ex parte in respect of which the sheriff has
attached
and with the opportunity of now having the respondents side of the
story. With ail the information now at hand, the question
raised is,
if I presided over the matter as the court of first instance, would I
have granted the order or not. Should the answer
to this question be
in the negative, it follows that the stands to be discharged.
The respondents complaints are
two-fold. Firstly that in terms of the practice directives of this
division, application for Anton
Piller type orders must stand on its
own and not form part of an application in which other relief is
claimed. Argument was submitted
that the applicant seeks to combine
relief relating to the restoration of possession of documents in
which it claims to have a
personal or real right, with Anton Piller
proceedings. While this may be so, I am persuaded by the argument
that the breadth of
the order obtained by the applicants was unduly
wide. The breadth of the order would allow for searches to be
undertaken to look
for evidence as in a fishing expedition, to
identify or found a case. This is clearly distinguishable from the
preservation of
evidence for use in an already identified claim. I
say this when regard is had to perusal of the order itself, to the
effect that
“...being all documents (whether in hard copy or
electronic form) which correspond with the file name and/or file
contents
and/or file size of those documents listed in annexure “A”
and Annexure “B” to the order makes no reference
to a
file name, file contents or file size of “documents listed”
therein. No documents are listed therein, only “key
words”.
Mr Cohen argued that this is merely an error and that I should order
an amendment in this regard. This is not where
the problem ends.
My difficulty is that the items
identified in the Key Words stated in Annexure “B”
reflects a host of generalised items
that can hardly be described as
“essential” or “absolutely necessary” or
“specified material”
or “vital evidence”
seized for the purpose of preserving evidence. It is evident that
with reference to the Key Words
stated in Annexure “B”,
it goes further than obtaining critical evidence, strictly necessary
for the preservation of
such evidence. The complaint of the
respondents are well-founded and I am of the view that had the full
picture been presented
to De Vos J, he would not have granted the
order.
I am satisfied that the order of
the 1 July 2016, as amended, should be set side in toto.
Though punitive costs had been
argued for, I do not deem it appropriate in the current
circumstances. Ordinary party and party costs
are awarded.
Order:
1.
The order dated 1 July 2016 by Mr. Justice De Vos (as amended in
terms of the order by Mr. Justice Bam dated 8 July 2016) is
set aside
in toto;
2.
The
Applicant’s application is dismissed;
3.
Costs
on the party-and-party scale including the costs of two counsel.
Honourable
Justice Swartz (AJ)