SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: 5701 /2022
In the matter between:
ADP MARINE & MODULAR PROPRIETARY LIMITED Applicant
and
EMILE VIVIAN ROCHER First Respondent
WESTARCOR ENGINEERING Second Respondent
PROPRIETARY LIMITED
HAMMER TOOL TRADING Third Respondent
PROPRIETARY LIMITED
HAMMER TOOL TECH CC Fourth Respondent
JUDGMENT
SIPUNZI AJ
Introduction
[1] This is an application in terms of which the applicant seeks preservation of
certain information and documentation that was s eized pursuant to an Anton Pilla r
order . The court partially granted the applicant's request for interim relief on 18 May
2022, and subsequently the final relief was granted on 25 July 2023. The relief
sought is as set out in the notice of motion dated 2 October 202 4;
1. ‘That all “Copied Data” obt ained in terms of an Anton Pilla r Order per Mr
Justice Le Grange on 18 May 2022 and confirmed by Mr Acting Justice
Hockey on 25 July 2023 (the Anton Pilla r Order) shall remain under th e
control of the Sheriff pending the outcome of a crimi nal complaint to be
lodged by the applicant with the South African Police Services (the
Criminal Complaint) ; alternatively pending further directions of this Court;
2. Insofar as necessary, that leave is granted to the applicant to utilise the
“Copied Data” p rocessed in ter ms of Paragraph 5.3 of the Anton Pillar
Order for purposes of formulating the Criminal Complaint.
3. Any party opposing this relief is ordered to pay the costs thereof, jointly
and seve rally, the one paying the other (s) to be absolved.
4. Further or alternative relief. ’
[2] The application is opposed. T he first, the third and th e fourth respondents
have taken, only a point of law. The second respondent's opposition is predicated on
the grounds that the relief sought offends its constitutional rights against self -
incrimination, an abuse of process, and the same point of law as the other
respondents.
The parties
[3] The applicant is ADP Marine & Modular Proprietary Limited is a private
company with limited liability, duly inco rporated with registration number
2012/071318/07, and having its registered office at Golf Park 3, Golf Park,
Raapenberg Road, Mowbray, Cape Town . It was formerly known as ADP Projects
(Pty) Ltd.
[4] The first respondent is Emile Vivian Rocher , an adult mechanical engineer,
with ID number 8[...], who resides at 1 […] E[...] Road, Durbanville, Cape Town,
7550.
[5] The second respondent is Westarcor Engineering Proprietary Limited , a
private company with limited liability , duly incorporated with registration number
200/0216 79/07, having its registered office at 25 Platinum Street, Saldanha Industrial
Area, Saldanha, Western Cape, 7395.
[6] The third respondent is Hammer Tool Trading Proprietary Limited , a private
company with limited liability, duly incorporated with registration number
2017/32442/07, and having its registered office at 18 Van Jaarsveld Street,
Welgemoed, Bellville, Cape Town, 7530.
[7] The fourth respondent is Hammer Tool Tech CC , a private company with
limited liab ility, duly incorporated with registration number 2008/011228/23, and
having its registered office at 7 Eike Road, Durbanville, Cape Town, 7550.
The Background
[8] This application is the result of ongoing civil litigatio n between the same
parties. The litigation is at the instance of the applicant who sought to recover
damages it allegedly sustained as a consequence of an alleged unlawful exploitation
of its confidential information and or infringement of its copyright . The applicant had
acquired intellectual pr operty and copyright for the design and supply of the MB100
plant, a modular mineral processing design, in the amount of R7 million. The
modular plant is widely utilised by diamond mines in the processing of
diamond iferous materials.
[9] The first respondent served as an employee of the applicant for approximately
twelve years . Over time, he acquired intimate knowledge of the applicant’s MB100
plant . As part of his duties, he collaborated closely with the second respondent to
further fabricat e the applicant ’s designs, which resulted in the M70 and MB 200.
During his tenure with the applicant , the first respondent began to work with the third
and fourth respondent s, who subsequently became competitors of the applicant on
the supply of modular mineral processing design. The first respondent became the
director of the third respondent.
[10] The plant that was the product of collaboration between the first and second
respondent became known as PT100 and had identical characteristics as the
applicant’s MB100 plant . At a later stage , the first respondent seized to be the
employee of the applicant. The applicant was of the opinion that the creation of the
PT100 plant was the cause of damages or harm that it suffered as a result of
cooperation between their former employee who is the first respondent and the
second respondent who had worked for the applicant in the development of the
MB100 , M70 and MB200 .
[11] On 18 May 2022, at the instance of the applicant, an interim Anton Pillar order
was granted by this Court . It was confirmed and made final in the judgment dated 25
July 2023. The order granted that;
“1. The rule nisi relating to the “Applicant Information” and the “Related
Information” that was obtained from the second respondent at the second
respondent’s premises in the execution of the order of this court dat ed 18 May
2022 (“the Anton Pilla r order”), pursuant to the Anton P illar application which
was brought under the above case number (“the Anton Pillar application”) and
which remains in possession of the sheriff of Vredenburg (“the second
respondent’s information”), is hereby confirmed.
2. The further conduct of this matter in relation to the second respondent’s
information shall be as follows:
2.1 All information and documentation se ized pursuant to the Anton Pilla r
order at the s econd respondent’s premises are to remain preserved and be
kept by the sheriff at Vredenburg.
2.2 The information and documentation in relation to the remaining
respondents are to be dealt with as provided for in the agreed order with
those respondents .
2.3 The applicant shall be permitted to have paragraph 5 of the Anton pillar
order in the terms sought therein executed and given effect vis -à-vis the
second respondent.
2.4 The sheriff, the second respondent, the forensic experts (ENS
Forensics) a nd the supervising attorney, Mr Ross Kudo, shall agree on a date
or dates and place for the execution of the steps described i n paragraph 5 of
the Anton Pilla r order to be completed.
2.5 In the event that the sheriff, the second respondent, the forensic experts
and the supervising attorney are unable to agree on such date or dates, the
sheriff shall be entitled to unilaterally determine a date and place and have the
forensic experts proceed with the execution of the steps described i n
paragraph 5 of the Anton Pilla r order in accordance with the remainder of the
terms provided therein on 5 (five) days’ written notice to the attorneys of
record for the second respondent.
2.6 The S heriff of Vredenburg shall do all things necessary to enable the
execution of the steps described in paragraph 5 of the Anton Pill ar order,
including but not limited to the S heriff of Vredenb urg providing ENS Forensics
with the passwords for the second respondent’s email and cloud accounts
comprising part of the second r espondent’s information, which passwords are
contained in the evidence bags under his control, and access to all other
documentation and further evidence of an electronic nature currently
preserved by him and under his control.
2.7 Thereafter, the parti es are to make discovery in terms of Uniform Rule
35(1) and (2) - including of information and documentation obtained through
the execution of paragraph 5 of the order.
2.8 The parties are to call for further and better discovery in terms of
Uniform Rul e 35(3) in the event that such further and better discovery is
required.
2.9 The parties’ further rights in terms of the Uniform Rules with regard to
applications to compel discovery, the issuing of subpoenas duces tecum , etc.,
are reserved.
3. Pending the final determination of the action proceedings instituted in this
court under case number 9167/22 (the action), the second respondent is
interdicted and restrained from directly or indirectly utilising any of the
applicant’s alleged inform ation (as defined in pa ragraph 4.3.1 of the Anton
Pillar order) or any other confidential information owned by the applicant, for
any purpose whatsoever, unless expressly authorised by the applicant in
writing to do so.
4. The second respondent shall pay the a pplicant’s costs on a party and
party scale, such costs to include the costs of two counsel.
5. The remaining costs of the Anton pillar application, including the
qualifying costs of the forensic experts and Mr Paley, the further cost of the
forensic experts and Mr Paley, the supervising attorney and the sheriff shall
stand over for determination at the trial.
6. The second respondent’s counter application was dismissed with costs.”1
[12] ‘Paragraph 5 of the interim Anton Pillar order’, referred to in the above reads
that;
“5. On a date or dates, and at a place to be arranged with the Sheriff and the
Supervising Attorneys, and in the presence of the Sheriff and the Supervising
Attorneys and the First and Second Respo ndents and/o r their legal
representatives ( should the First and Second Respondents or their legal
representatives wish to attend), ENS Forensics are authorised to;
5.1. Upload the Copied Data to a secure off -site server(s) under their control;
5.2. prepare the Copied Data to be searched in accordance with paragraph 5.3
below;
5.3. Conduct a search of the Copied Data for purposes of locating the Applicant’s
Informa tion and Related Information (“ The Electronic Discovery”);
5.4. Prepare a list of the items comprising the Electronic Discovery;
5.5. Copy the Electronic Discovery onto a storage device or devices;
1 ADP Marine & Modular Proprietary Limited v Rocher & Others (5701/2022) [2023] ZAWCHC 225 (25
July 2023, paragraph 103
5.6. H and the aforesaid storage device or devices and list of items comprising the
Electronic Discovery to the Sheriff for safekeeping pending t he directions of the
Court; and
5.7. Thereafter, permanently delete the Copied Data, and confirm such
permanent deletion of the Copied Data by way of an affidavit deposed to by an
authorised representative of the IT Specialists.”
[13] These Court orders were executed , and t he information and documentation
which was retrieved and seized remained in the possession of the Sheriff ,
Vredenburg . Subs equent to the preservation and the distribution of the information
and documentation seized as directed by the Court orders , the applicant now seek s
a similar relief to have it preserved , again . The applicant additionally seeks to be
granted permission to utilise some of the information and documentation seized to
lay criminal charges against certain individuals .
Submission s
[14] Mr Van Zyl SC, for the applicant acknowledged that the Court order granted
on 25 July 2023 included the preservation of all information and documentation
seized , and currently held by the Sheriff, Vredenburg . However, in order to
safeguard same from contamination or interference, the applicant sought a simi lar
relief , ex abdundanti cautela . He submitted that the applicant was not motivated by
any conduct that may have undermined the already existing relief, but rather acted
out of fear, since some of the email accounts of the second respondent had already
been deleted in order to frustrate the r ecovery processes. The applicant sought the
perpetuation of the status quo . According to the a pplicant, the preservation -related
relief is consistent with paragraph 9 of the Anton Pillar order, where the court
ordered ; All listed items taken into possession by the Sheriff pursuant to this order
shall, subject to para 5 of the interim order of 22 May 2022, be retained by him until
the Court order ed otherwise. ’2
2 Applicant’s heads of argument, paragraph 32 and 33
[15] He emphatically submitted that the applicant requi red to utilise certain
information and documentation that had already been seized and that was in its
possession to support the criminal charges the applicant intend ed to file with the
South African Police Services . The applicant was mindful that , although they were
already in possession of the information and documentation seized , they sought to
utilise it when criminal charges were filed. However, since it was only provided to it
for the purposes of the on -going civil proceeding , the applicant was not permitted to
utilise it as it intended without first seeking the leave of the court . To make their
point the applicant mainly relied on Mathais International Ltd and Another v Bail lache
and Other s.3 Their reliance was to the extent that the court argued that, “I consider
in any event that a proper consideration of the content of the founding affidavit in the
access application, assessed with regard to the latter’s context in the uncompleted
Anton Pillar process, shows that the deponent gave the court an implied undertaking
by the applicant not to u se the information obtained in terms of the order for any
other purpose than that for which it was averred to be sought. The effect is that the
applicants were not entitled to use the material in the manner in which they did
without first obtaining the leave of the court ….It is therefore accepted that in
appropriate circumstances the court may release the part y receiving discovery from
its implied undertaking or modify the extent of its undertaking.”4
[16] The applicant contend ed that the respondents’ assertion regarding the
potential violation of their right to a fair trial and Constitutional rights due to the use of
certain information and documentation seized in relation to criminal charges follows
from a misinterpretation of th e applicant’s purpose and intent in utilising the material.
The applicant argued that the question of the admissibility of certain information and
documentation obtained during the criminal trial remained open to the discretion of
the criminal trial court , contingent upon the course or outcome of the criminal
investigations.
[17] The respondents conten ded that the preservation of the information and
documentation seized under the Anton Pillar O rder had already been granted to the
3 Mathias International Limited Ltd and Another v Baillache and Others 2015 (2) SA 357 WCC,
paragraph 48
4 Applicant’s heads of argument, paragr aph 41, 42 and 43
applicant , making it u nnecessary to seek the same relief in this application. The first ,
third and fourth respondents argued that in City of Cape Town v South African
National Roads Authority Limited and Others ,5 it was held that in similar
circumstances , the applicant did not require the leave of the court. Further , that the
‘implied undertaking rule’ which informed the applicant’s approach was found not to
be part of the South African Law and therefore not applicable .6 They also
contended that the compilation of the ‘ Theron Forensic Report’ at the instance of the
applicant indicated that they had already utilised the information and documentation
seized for purposes beyond what was granted by the Anton Pillar Order .
[18] Based on Ferreira v Levin N.O7, they also submitted that this court lacked
jurisdiction to determin e what evidence ought to be presented in criminal
proceedings, as this matter was meant to be left to the exercise of the judicial
discretion of the criminal court before which the trial would serve . They argued that
in this instance, the applicant unduly and improperly invoked the Plascon -Evans
Rule by seeking to shift the onus from the state in criminal proceedings to the
respondents , compelling them to make admissions and confessions , which infringed
upon their rights to a fair trial.
[19] The second respondent aligned itself with the conten tions and submissions of
the other respondents , to the extent that the applicant sought relief that was unlawful
and with no legal basis . It echoed that the approach adopted by the applicant which
was found to be contrary to and irreconci lable with the general principles of the legal
frame work governing Anton Pillar proceedings . According to the second respondent,
the applicant’s attempt to expand the Anton Pillar order that was already granted ,
into criminal proceedings was fundamentally at odds with right not to be compelled to
produce self-incriminating evidence .
5 City of Cape Town v. South African Road Authority Limited and Others 2015 (3) SA 386 (SCA)
6 First, third & fourth respondents’ heads of argument, paragraph 3
7 Ferreira v Levin N.O , paragraph 153 and pp 287, the court held, ‘A compul sion to give self -
incriminating evidence, coupled with only a direct use immunity along the lines indicated above, and
subject to a judicial discretion to exclude derivative evidence at the criminal trial, would not negate the
essential content of the sect ion 11(1) right to freedom or section 25(3) right to a fair trial……..The trial
judge is the person best placed to take that decision. The development of law of evidence in this
regard is a matter for the supreme court. The essential content of the right is therefore not even
touched.’
[20] Notwithstanding that there was no criminal prosecution yet, the respondents
submitted that the potential for such action , as per the expressed intention of the
applicant, triggered the application of the rights outlined in section 35(3) of the
Constitution, which guarantee s the right to fair trial for an accused or a suspect in
criminal proceedings. They relied on the S v Orie and Another 2005 (1) SACR 63
(C)8 to emphasise that the respondents were entitled to fair pre -trial procedures,
which were interlinked to the right to a fair trial.
Issue s
[21] There are three primary issues that require determination in casu ;
(i) Whether the applicant had the requisite degree of necessity when it
sought a relief that had already been granted obtained in pr evious
proceedings ;
(ii) Whether the applicant should be granted leave to utilise some of the
information and documentation seized pursuant to the Antol Pillar
proceedings to pursue criminal charges with the SAPS ; and lastly
(iii) If the relief sought is granted, whether the use of the said information
and documentation would infringe upon the respondents’ right to a fair trial.
The applicable legal principles
[22] Roamer Watch Co. SA and Another v African Textile Distributors, also t/a MK
Patel Wholesale Merchants and Direct Importers , 9 provides the test for Anton Pillar
relief . ‘The applicant must establish prima facie that he has a valid cause of action
against the respondent , which he intends to pursue, that the respondent has in his
possession specific documents or items which constitute crucial 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 concealed , destroyed , or in some manner
8 The second respondent’s heads of argument, 49 -54
9 Roamer Watch Co. SA and Another v African Textile Distributors, also t/a MK Patel Wholesale
Merchants and Direct Importers 1980 (2) SA 254 (W)
spirited away b efore the trial, or at any rate before the stage of discovery .
Furthermore, if the applicant requests the court to issue an order to safeguard this
evidence, is the court require d to take a non possumus stance, p articularly in the
absence of a viable alternative? I am inclined to think not . It would undo ubtedly
reveal a grave defect in our system of justice if it were to be discovered that, in
circumstances such as these the Court w as powerless to act. Fortunately, I am not
persuaded that it would be. In my opinion, a n order that involves in some way
recorded evidence e.g. whether, by copying documents , photographin g items , or
even by placing them temporarily i.e. pendente lite in the custody of a third party ,
would not in my view be beyond the inherent powers of the court. I perceive no
difficul ty in permitting such an order to be sought ex parte , without notice , and in
camera, provided that the applicant can demonstrate a genuine possibility that the
evidence may l be lost if the respondent gets the wind of the application. ’
[23] In instances of criminal investigations, section 205 of The Criminal Procedure
Act 51 of 1977 provides as follows “Judge, Regional Court Magistrate or
magistrate may take evidence as to alleged offence provide d that;
(1) A judge of a High Court, a regional court magistrate or a magistrate may,
subject to the provisions of subsection (4) and section 15 of the Regulation of
Interception of Communications and Provision of Communication -related
Information Act, 2002, upon the request of a Director of Public Prosecutions
or a public prosecutor authorized thereto in writing by the Director of Public
Prosecutions, require the atte ndance before him or her or any other judge,
regional court magistrate or magistrate, for examination by the Director of
Public Prosecutions or the public prosecutor authorized thereto in writing by
the Director of Public Prosecutions, of any person who is likely to give
material or relevant information as to any alleged offence, whether or not it is
known by whom the offence was committed: Provided that if such person
furnishes that information to the satisfaction of the Director of Public
Prosecutions or public prosecutor concerned prior to the date on which he or
she is required to appear before a judge, regional court magistrate or
magistrate, he or she shall be under no further obligation to appear before a
judge, regional court magistrate or magistrate .
(2) The provisions of sections 162 to 165 inclusive, 179 to 181 inclusive, 187
to 189 inclusive, 191 and 204 shall mutatis mutandis apply with reference to
the proceedings under subsection (1).
(3) The examination of any person under subsection (1) may be conducted in
private at any place designated by the judge, regional court magistrate or
magistrate.
(4) A person required in terms of subsection (1) to appear before a judge, a
regional court magistrate or a magistrate for examination, and who refuses or
fails to give the information contemplated in subsection (1), shall not be
sentenced to imprisonment as contemplated in section 189 unless the judge,
regional court magistrate or magistrate concerned, as the case may be, is
also of the opinion t hat the furnishing of such information is necessary for the
administration of justice or the maintenance of law and order. ”
[24] In line with their opposition to the application, the res pondents raised the
Section 35 of the Constitution, a s will be dealt with here below . In the
circumstances, Uniform Rule 16A found application, and it reads:
“Rule16 A Submissions by an amicus curiae -
(1) Any person raising a Constitutional issue in an application or action shall
give notice thereof to the registrar at the time of filling the relevant affidavit or
pleading.”
Evaluation
The preservation order
[25] At this point , it is essential to examine the facts in order to determine whether
it was necessary or justified for the applicant to seek the same relief based on their
fear or ex abundanti cautela , as these factors prompted them to seek this relief . In
this instance, the applicant seeks relief to have the information and documents that
were seized and preserved by means of an already operational Anton Pillar court
order , issued on 2 4 July 2023 . By virtue of the same order, these documents and
information remained in the possession of the Sheriff of this Court, Vredenburg .
Therefore , it is fair to accept that all the respondents are not capable of exercising
any authority over same. It is common cause that the preservation of the information
and documentation seized was part of the Anton Pillar order initiated at the instance
of the applicant . It is also common cause that the information and documentation
seized and preserved were distributed to the same parties, in terms of the same
court order.
[26] Notwithstanding that the applicant had secured a judgment in its favour for the
preservation of the information and documentation seized , they persisted to seek
relief in similar terms out of fear that there could be some interfere nce and ex
abundanti cautela , it sought to obtain a relief in similar terms. It is important to note
that when the applicant approached this Court there had been no indications that the
preservation relief it obtained and which is currently in effect was undermined or
under threat of interference . No factors or evidence suggest ed that there were
efforts to undermine the order , save for some information that the email account of
the second respondent was deleted prior to the issuance of the Anton Pillar Order .
[27] Having said that, one is also alive to the fact that even though the applicant
may have already obtained the similar relief, it was not barred from approaching the
Court, to seek relief aimed at protecting specific interests .10 However, there must be
a requisite degree of necessit y, meaning that something must have occurred or
intervened in the course of the operation of the order granted already on 25 July
2023 .11 Such an occurrence would have necessitated the applicant to intervene by
approach ing the Court for a similar relief in order to safeguard or in defence of
specific interests that required protection.
[28] In casu , the applicant had to demonstrate that there is a real and well -founded
apprehension that the information and documentation se ized, currently held by the
Sheriff may be concealed or destroyed or in some manner spirited away by the time
10 Minister of Local Government and Land Tenure and Another v Sizwe Development and Others : in
re Sizwe Development v Flagstaff Municipality 1991 (1) SA 677 (Tk) at 679D
11 Appel and Others v Democratic Alliance and Others, In re: Democratic Alliance and Another v
Council of Theewaterskloof and Others (19623/2024) HCWC,[2025] (4 February 2025), Paragraph 33
the case comes to trial .12 As evident in the judgment of 2 5 July 2023, when the
initially application served before Hockey AJ , the applicant had satisfactory
demonstrated that there was a real possibility that the evidence would be lost if the
respondents became aware of the application . Hence all the information and
documentation seized was preserved in the custody of the Sheriff , who remains
subject to the powers of this Court .13
[29] Now that the applicant seeks the same relief to be restated or re issue , it
needed to demonstrate a need to revisit th at relief , or intervene in some way , or that
there was a necessity for the exercise of some judicial power. The applicant
confirmed the absence of any real or perceived threat to the existing order and failed
to demonstrate factors t hat trigger ed its exercise of caution over any of the
respondents and the Sheriff of Vredenburg . I am not persuaded that additional relief
of further preservation of the already preserved information and documents seized
will add any value and/or enhance the effectiveness of the Anton Pillar Order of 25
July 2023 . The applicant has not established that there are further interests or cause
for action out of caution and or fear of interference that will further protect the already
issued relief and or reaffirmed that relief.
[30] The applicant has failed to establish that the it was necessary and justified to
repeat the relief alre ady granted for the preservation of the information and the
documentation seized during the execution of the Anton Pillar O rder of 2 5 July 202 3.
The motivation given by the applicant for approaching the court in this in stance
lacked the requisite degree of necessity /urgency and will not advance any
substantial inter ests as no threat existed to instil fear of possible interference , or that
there was any legal basis to exercise caution and pursue the same relief .
The intended criminal proceedings
[31] Upon the perusal of the documents and the information received through the
Anton Pillar Order , the applicant held the view that a criminal matter should be
12 Roamer Watch Co. SA and Another v African Textile Distributors, also t/a MK Patel Wholesale
Merchants and Direct Importers 1980 (2) SA 254 (W)
13 Roamer Watch Co. SA and Another v African Textile Distributors, also t/a MK Patel Wholesale
Merchants and Direct Importers 1980 (2) SA 254 (W)
registered with the S APS. To substantiate its allegations of criminal conduct , the
applicant concluded that it was necessary to utilise some of the information or
documents that had been seized .
[32] The court order designates the Sheriff of the Court as the custodian of the
seized documents and information, ensuring their preservation. The office of the
Sheriff is by design an officer of this Court , subject to the authority of the Court and
has a legal duty it.14 The members of the SAPS should have a legal framework and
a range of options to explore in order to obtain or utilise any information and
documents they consider necessary during their investigations after a criminal case
has been lodged. If a complainant has filed criminal charges, it is sufficient for them
to provide a statement and rely on the police's expertise or competency to utilise any
legal tools available to them if necessary.
[33] For instance , the SAPS has the authority to issue a subpoenaed for an
individual to attend court if they are likely to provide material and /or relevant
information as to any alleged offence , regardless of whether the identity of the
offender is known, provided they furnished that information to the satisfaction of the
prosecution prior to the date on which they would be expected to appear before the
court .15 Should a need arise, it remains within the right of the SAPS to access any
confidential information in the possession of the Sheriff of Vredenburg , including any
private persons, in pursuit of criminal investigations . The police possess the powers
to enter any premises, conduct search es; and seize material or information in pursuit
of criminal investigations.16 Therefore, I am inclined to agree with the assertion that,
any attempt to enter into the realm of dictating or directing how the SAPS should
conduct their investigations and or what kind of evidence they should ga ther once a
criminal case has be registered is unt enable and lacks sound legal basis.
[34] If the applicant firmly believed that they possess any grounds to pursue
criminal charges, the re is an abundance of mechanisms available to the SAPS ,
making it unnecessary for this court to enter that realm. Who knows, they m ay find
14 Sheriffs Act 90 of 1986
15 The Criminal Procedure Act, section 205
16 The Criminal Procedure Act, Chapter 2
whatever information this court may determine will be useful for their ends to be of
no value and irrelevant. In the context of the ongoing litigation between the parties
and their dispute/s this court i s not well -placed to determine what evidence ought to
be presented in criminal investiga tions or proceedings .
[35] In light of the above findings regarding the utilisation of some of the
information and documents seized in pursuance of the Anton Pillar Order , it is
unnecessary to traverse the arguments , the applic ability and relevance of Section 35
of the Constitution , particularly to the extent that the intended criminal litigation may
reach trial.
[36] In my view, to the extent that the applicant sought to place reliance on the
decision of Mathais International Ltd and Another v Baillache , such reliance does not
advance its case at all, as it does not find relevance for the intended purposes of the
appli cant. The information or documents that may be necessary and relevant for
purposes of investigations of alleged criminal conduct remain a matter for the SAPS
and less of the responsibility of the potential complainants or the Court.
Conclusion
[37] In conclusion , the relief sought in prayer 1 of the notice of motion, if granted ,
will carry no better force to the already granted relief and therefore , has no sound
legal basis. It is unnecessary and could be correctly perceived as dragging other
litigants to court unnecessarily. The approach of the applicant in the relief sought in
prayer 2 of the notice of motion is not supported by clearly established l egal
principles and procedures that regulate the conduct of criminal offence’ s
investigations.
Costs
[38] The applicant also seeks an order that ‘any party opposing this relief is
ordered to pay the costs thereof, jointly and severally, the one paying the other(s) to
be absolved.’17 However, during oral submission there was no insistence for a
departure from the general norm, that costs follow the results . The parties were in
agreement on how the costs of this application should be determined, with which I
also agree.
Order
[39] The order below is made:
1. The application is dismissed;
2. The applicant to pay the costs , including the costs of two counsel
where so employed. The costs of senior counsel on scale C and junior
counsel on scale B.
--------------------------------------------
SIPUNZI AJ
Acting Judge of the High Cour t
Appearances
Counsel for the applicant : Adv Francois van Zyl SC
Adv Christopher Quinn
Instructed by : Francis Thomson & Aspden Attorneys
Mr N McDougall
Counsel for the second respondent :
Adv Craig Webster SC
Adv Ben Prinsloo
Instructed by : Ebersohns Attorneys
17 Notice of motion, paragraph 3
Ms M Sturgeon
Counsel for the first, third & fourth respondents :
Adv Jaco Roux SC – Pretoria Bar
Instructed by : Bredenkamp Attorneys
Ms M van Aardt
Date of Hearing: 17 June 2025
Date of Judgment: 9 July 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email.