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ALLAN TIFLIN Sixth Respondent
JUDGMENT
THERON AJ:
[1] This application is described by the Applicants (collectively referred to
as “Guardrisk”) as:
“... a search and seizure application to restore possession of the
Applicants’ confidential information and to delete the Applicants’
confidential information that was (prior to the execution of the
search and seizure order) in the Respondents’ possession.”1
(my underlining)
[2] Guardrisk disavows any reliance on an Anton Piller application aimed
at preserving evidence.
[3] The Full Bench in this division recognised the availability of the relief
sought, i.e. the attachment of property in which a real or personal right
1 Applicants’ heads of argument, paragraph 4
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is claimed, pendente lite.2
[4] Information or knowledge, of whatever value and however confidential,
is not recognised as property in South Africa.3
[5] This was the finding of Serrurier, AJ in Waste-Tech which was support
although in an obiter dictum in Avusa.
[6] I am bound by Waste-Tech unless I find that it is patently wrong, a
judicial blunder, or that it results in a manifest and unsustai nable
absurdity or injustice.4
[7] I am not prepared to do so.
[8] In ABSA Insurance and Financial Advisers (Pty) Limited v Möller 5,
Binns-Ward J said the following:
“[10] While Serurrier AJ was probably correct, in my respectful
2 Cerebros Food Corporation Limited v Diverse Foods SA (Pty) Limited and Another
1984 (4) SA 149 (T) at 164 D-E (“Cerebros”)
3 Waste-Tech (Pty) Limited v Wade Refuse (Pty) Limited 1993 (1) SA 833 (W) at 843 D and
845 B (“Waste-Tech”); South African Broadcasting Corporation v Avusa Limited and
Another 2010 (1) SA 280 (GSJ) at paragraph [15] (“Avusa”) and Prinsloo v RCP Media
Limited t/a Rapport 2003 (4) SA 456 (T) at 464 C-G
4 Strutfast (Pty) Limited v Uys and Another 2017 (6) SA 491 (GJ) at paragraph [30]
5 [2014] ZAWCHC 176 at paragraph [10]
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opinion, in holding that informati on is, in general, not property
amenable to vindication, I am in agreement with the argument
advanced by the applicant’s counsel, with reference, amongst
other matters, to the full court’s judgment in Cerebros Food
Corporation, that search and seizure reli ef of the type sought by
the applicant in the current case is nevertheless competent if it
is shown to be required to protect the applicant against harm
that it is able to show that it is likely to suffer as a consequence
of the use of the information by the respondents in the context of
unlawful competition, or breach of contract . The judgment in
Cerebros Food Corporation in point of fact serves as authority
for the point, if such were required.”
(my underlining)
[9] I refer to the underlined portion as “the finding”.
[10] I respectfully disagree with the finding.
[11] Cerebros is not authority for the finding and the examples given by the
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Full Court demonstrate this.6
[12] The preservation of the “thing” seized and the prevention of irreparable
harm to “it” may be achieved by attachment pendente lite when an
applicant alleges an existing right in a “thing” or a contractual right to
delivery of the “thing”.7
[13] This is not a case of ubi ius ibi remedium or one that requires me to
hold the scales of justice where no specific law provides directly for the
situation.8
[14] For these reasons, the rule nisi providing for the search for and seizure
of information falls to be discharged.
[15] In accordance with the reasoning of Binns -Ward J 9, the judge made
law in this division does not allow for a search and seizure in relation to
information and I am bound to the parameters set in Cerebros and
Waste-Tech.
6 Morrison v African Guarantee and Indemnity Co Limited 1936 (1) PH M35 (T); Loader v
De Beer 1947 (1) SA 87 (W) and Van Rhyn v Reef Developments A (Pty) Limited 1937 (1)
SA 488 (W)
7 Cerebros at 164 E-F
8 Cerebros at 166 I to 167 A and Ex parte Millsite Investment Co (Pty) Limited 1965 (2) SA
582 (T) at 585 H
9 Mathias International Limited and Another v Baillanche and Others 2015 (2) SA 357
(WCC) and Möller
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[16] Any order outside of the parameters set in Waste-Tech and Cerebros
would be an order which the judge was not empowered to grant and
the setting aside of the rule must follow as a matter of course.10
[17] Even though it is strictly speaking unnecessary to deal with the
criticisms levelled at the order, its effect and execution, I deal with
some of the criticisms on a superficial basis to demonstrate t hat I
would have discharged the rule even if it was competent.
[18] Other than the identification of one or two specific documents, the
Applicant did not prima facie establish that the Respondents had in
their possession specific information.
[19] I am of the view that the identification of specific information is a
requirement, also of the type of application I am considering, and not
just to an Anton Piller if regard is had to the draconian nature of the
order and its effect, being the invasion of the Respondents’ privacy.11
[20] The phrases “Guardrisk’s Confidential Information” as further defined12
10 Memory Institute SA CC t/a SA Memory Institute v Hansen and Others 2004 (2) SA 630
(SCA) at paragraph [3] and Möller at paragraph [5] and [17]
11 Mathias International Limited and Another v Baillanche and Others 2015 (2) SA 357
(WCC) at paragraph [20]
12 see for example paragraph 10.1 of the order
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is excessively broad and facilitates a near boundless fishing
expedition.
[21] The keyword search parameters set out in an annexure to the order,
NOM2B, contain for example, the s urnames of Respondents, their
private e-mail addresses and general terms which would clearly flag a
wide range of documents private and confidential to the Respondents
and not susceptible to any seizure.
[22] The search, applying the keyword search parameters a uthorised by
the order, has generated a vast number of “responsive” documents,
i.e. documents containing the search words and demonstrates why
specificity is required.
[23] The effect of the order granted is abusive of the Respondents and their
privacy.
[24] I do n ot need to find that the order was wilfully couched in the wide
terms that it was or that there are any mala fides.13
[25] A disturbing feature of the order is that it contemplates and allows for
13 See Quindell Business Process Outsourcing (Pty) Limited v Bespoke BPO (Pty)
Limited (unreported, KZD case number 9796/2015 dated 22 March 2017) at paragraph [33]
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the destruction of documents without affording the Respondents a
hearing.
[26] Paragraphs 10.2 to 10.4 of the ex parte order permit the Applicants’
forensic experts to seize the Respondents’ devices, conduct searches
of the data on those devices and to permanently delete what they
consider to constitute Guardrisk’s Confidenti al Information from all
such digital devices or media.
[27] The order does not require the Applicants’ forensic experts to give prior
notice to the Respondents of what information they regard as
Guardrisk Confidential Information before deletion, nor does it re quire
them to consider any potential objections to the deletion of the data
before doing so.
[28] The order merely affords the Respondents with an opportunity to
object to the seizure of the devices and the search thereof.
[29] This affords no protection the Respond ents because it is not the
scanning of the devices which deals the most significant lasting
damage to the Respondents.
[30] In their report, the forensic experts have confirmed that information has
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been permanently deleted. The deletion was without an opportuni ty for
the Respondents to object thereto.
[31] The order allows for the retention of all the devices seized without
allowing the Respondents access to the devices. The Respondents are
effectively precluded from discerning what information the forensic
experts, as final arbiter, chose to delete.
[32] Guardrisk, belatedly, in reply and in heads of argument indicate that
the forensic copies would allow for the “return” of information which
was deleted if it was later found that it did not constitute Guardrisk’s
confidential information.
[33] I accept that this is physically possible, but the order granted ex parte
does not make provision for a mechanism to make a determination of
the alleged confidentiality of any information.
[34] I have not dealt with all of the complaints rais ed by the Respondents
against the order and their contention that the order was an abuse as a
result thereof.
[35] This is unnecessary because of my finding above that the order was
incompetent to begin with.
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[36] The Applicants are not without remedy as they are fr ee to pursue
claims for damages in delict.
[37] The Applicants seek a final interdict interdicting and restraining them
from utilising or disclosing any of “Guardrisk’s Confidential Information”
or any part thereof.
[38] The interdict is simply too vaguely formulate d as Guardrisk’s
Confidential Information as further defined in paragraph 10 of the order
is too vague to be enforceable.
[39] I therefore decline to exercise my discretion and to grant an interdict in
the terms sought.
[40] To be clear, I make no finding as to whet her the Respondents are
unlawfully in possession of information or whether they are utilising
such information to unlawfully compete with Guardrisk.
[41] In the result I make the following order
1. The rule nisi granted on 28 March 2023 (as amended) is
discharged.
2. The Applicants are ordered to pay the Respondents’ costs