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[1995] ZASCA 49
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Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, Maphanga v Officer Commanding, SA Police Murder & Robbery Unit, Pietermaritzburg (500/93,525/93) [1995] ZASCA 49; 1995 (4) SA 1 (AD); [1995] 2 All SA 300 (A) (12 May 1995)
Cases nos 500/93 and 525/93
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the appeals of:
(1)
THULANE WASHINGTON SHOBA
duly assisted by PHILDA SHOBA in
her capacity as his mother and
legal guardian . . .. Appellant
versus
THE OFFICER COMMANDING THE TEMPORARY
POLICE CAMP AT WAGENDRIFT DAM
1st Respondent
THE MINISTER OF LAW AND ORDER
2nd Respondent
and
(2)
MDUDUZI SIEGFRIED MAPHANGA
Appellant
versus
THE OFFICER COMMANDING, SAP MURDER &
ROBBERY UNIT, CNR EDENDALE & CAMPS
DRIFT ROADS, PIETERMARITZBURG
1st Respondent
THE OFFICER COMMANDING. SAP STATION,
LOOP STREET, PIETERMARTTZBURG
2nd Respondent
THE MINISTER OF LAW AND ORDER
... 3rd Respondent
CORAM
: CORBETT CJ, E M GROSSKOPF, NESTADT, STEYN JJA et( NICHOLAS
AJA.
DATE OF HEARING
: 7 March 1995
DATE OF JUDGMENT
: 12 May 1995
JUDGMENT
CORBETT CJ
: /
2
CORBETT CJ
:
These two appeals raise once again the vexed question
of the use of the so-called Anton Piller order in our law. This matter was first
considered by this Court in the case of
Universal City Studios Inc and Others
v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A). In that case the Judge of
first instance (Lategan J) had granted what is commonly referred to as an Anton
Filler order in an
instance of the alleged "pirating" of cinematograph films by
a maker and distributor of video tapes. The order was far-reaching in
its terms.
An appeal to the Full Court was successful and the order was set aside (see
Network Video (Pty) Ltd v Universal City Studios Inc and Others
1984 (4)
SA 379
(C) ). By the time that the case came before this Court on appeal it was
moot and the only live issues were the costs of
3
the various stages of the proceedings. The Court indicated that one of the
paragraphs of the order of Lategan J ought properly to
have been granted, but as
there was no practical point in making a formal order to this effect, thus
Court's order dealt only with
costs.
The judgment of this Court reviewed the
more important reported decisions of our Courts relating to Anton Piller orders
and referred
particularly to the trilogy of Transvaal cases
(Economic Data
Processing (Pty) Ltd and Others v Pentreath
1984 (2) SA 605
(W);
Cerebos
Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another
1984 (4) SA
149
(T); and
Trade Fairs and Promotions ( Pty) Ltd v Thomson and Another
1984 (4) SA 177
(W) ) in which disapproval of the practice of granting such
orders was expressed. In the judgment (at 751 B-E) this Court referred
to the
analysis and
4
summary of the various components of Anton Piller orders granted by South
African courts contained in the judgment in the
Cerebos Food
case, supra,
at 164 A-C, and reading as follows:
"1. Authorising the search for and attachment of property in the possession
of the defendant where the plaintiff has a real or personal
right to it,
2. Orders for the disclosure of names of sources and retail outlets of the
defendant as they enable the defendant to operate unlawfully,
infringing on the
plaintiff's rights.
3. Orders for the attachment of documents and other things to which no right is
claimed except that they should be preserved for
and produced as evidence in an
intending Court case between the parties.
4. Orders for the production and handing over of a thing to which no right is
claimed but as part of an interdict to make the interdict
effective, for example
by erasure of a trade mark from the defendant's
goods."
In the
Cerebos Food
case the Court,
consisting of Boshoff JP, Van
Dijkhorst J and O'Donovan J, went on to hold
-
(a) that the first of these components, viz an order for the
5
attachment of property in which a real or personal right was claimed
(including both common law and statutory rights) was not a "true
Anton Piller
remedy" and that our Courts had for many years been granting interim attachment
orders where the plaintiff alleged an
existing right in a thing and where the
only way in which that thing could be preserved or irreparable harm prevented
was by the
attachment thereof pendente lite
(Cerebos Food
judgment at
164D - P); (b) mat neither in Roman law nor in Roman-Dutch law nor in our law as
laid down by the Appellate Division
was there any authority justifying an order
for the type of disclosure covered by the second component
(Cerebos Food
judgment at 168A -B);
6
(c) that South African Courts had no jurisdiction to grant the type of order of
attachment visualized by the third component, i e
where the applicant claimed no
right in the property to be attached but wished to have it preserved so that it
could be produced
as evidence in an intended court action
(Cerebos Food
judgment at 173F); and
(d) that, in regard to the fourth component, a South African Court had no power
to order the handing over of property "to make the
interdict effective" where no
right to that property existed
(Cerebos Food
judgment at 173G -
I).
With reference to the third component and the views expressed
in the
Cerebos Food
case concerning it, the judgment in the
Universal
City Studios
case makes the following observation (at 754E
7
-F):
"Now, I am by no means convinced that in appropriate circumstances the Court
does not have the power to grant ex parte and without
notice to the other party,
ie the respondent (and even, if necessary, in camera) an order designed pendente
lite to preserve evidence
in the possession of the respondent. It is probably
correct, as so cogently reasoned by the Court in the Cerebos Food case supra,
that there is no authority for such a procedure in our common law. But, of
course, the remedies devised in the Anton Piller case
supra and other subsequent
cases for the preservation of evidence are essentially modem legal remedies
devised to cater for modem
problems in the prosecution of commercial suits."
After reference to the Court's inherent power to regulate its procedures in
the interests of the proper administration of justice,
the judgment proceeds (at
755A -E):
8
"In a case where the applicant can establish prima facie that he has a cause
of action against the respondent which he intends to
pursue, that the respondent
has in his possession specific documents or things which constitute vital
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 hidden or destroyed or
in some manner spirited away by the time the case
comes to trial, or at any rate
to the stage of discovery, and the applicant asks the Court to make an order
designed to preserve
the evidence in some way, is the Court obliged to adopt a
non possumus attitude? Especially if there is no feasible alternative?
I am
inclined to think not. It would certainly expose a grave defect in our system of
justice if it were to be found that in circumstances
such as these the Court
were powerless to act. Fortunately I am not persuaded that it would be. An order
whereby the evidence was
in some way recorded, eg by copying documents or
photographing things or even by placing them temporarily, ie pendente lite,in
the
custody of a third party would not, in my view, be beyond the inherent
powers of the Court. Nor do I perceive any difficulty in permitting
such an
order to be applied for ex parte and without notice and in camera, provided that
the applicant can show the real possibility
9
that the evidence will be lost to him if the respondent gets wind of the
application."
(I have corrected the misprints which appeared in the published version of
the judgment.)
The judgment also deals with safeguards and procedures (at 755F - G), but
then goes on to state that it is not necessary in the instant
case to "pronounce
finally on these matters" inasmuch as the orders in issue granted by Lategan J
are "a far cry from an order designed
merely to preserve specific evidence for
trial" (at 755H -1).
This brings me to the second decision of this Court in a
case involving an Anton Piller-type order, viz
Jafta v Minister of Law and
Order and Others
[1991] ZASCA 1
;
1991 (2) SA 286
(A). In that case the applicant
(appellant), alleging that he had been taken into custody by the police and
interrogated at a police
station and that in the course of
10
interrogation he had been assaulted and tortured by being given electric
shocks, made application in the Witwatersrand Local Division
in accordance with
the usual Anton Piller procedures for an Anton Piller-type order, citing as
respondents the Minister of Law and
Order and certain senior police officers.
The order sought, which ran to many paragraphs, was designed generally to enable
the applicant
to point out and identify, at the police station, the alleged
torture apparatus and to ensure that such apparatus be preserved so
that it
should serve as evidence in a civil claim for damages to be instituted by the
applicant against the respondents.
The application came before Streicher J, who permitted it
to
be heard ex parte in camera and without notice to the respondents.
After
hearing argument he dismissed the application, holding that he
11 was precluded by the decision of the Full Court in the
Cerebos
Food
case, supra, from granting the relief claimed, but granted leave to
appeal
to this Court. An application that this Court hear the appeal
in camera and
without notice to the respondents, and argument on the
merits of the appeal,
were heard by this Court, as a matter of urgency,
in camera and without
notice. The procedures which were followed
to achieve this result are fully
set forth in the judgment of this Court
(Jafta case, supra, at 290H - 291J)
and need not be detailed.
In its judgment in the
Jafta
case this Court held as
follows:
(1) That the above-quoted dictum in the
Universal City
Studio
case,
supra (and appearing in the reported judgment of the case at
755A - E) was obiter (see Jafta judgment at 292G -
293A);
12
(2) That Streicher J was correct in holding that he was precluded from granting
the orders prayed by the decision of the Full Court
in the
Cerebos Food
case (
Jafta
judgment at 293B -D).
(3) That for the application and the appeal to succeed it was necessary for this
Court to translate the
obiter
dictum referred to in (1) above into "a
positive decision" and to overrule pro tanto the
Cerebos Food
decision
(Jafta
judgment at 293D - E).
(4) That there were various statutory provisions which might possibly prevent an
order being granted against the respondents ex parte
and without notice, of
which sec 35 of Act 62 of 1955 appeared prima facie to be the most pertinent
(Jafta
judgment at 294D - 2951); and that owing to the ex parte nature of
the proceedings the Court could not be sure that there were no
other
13
statutory bars to the relief being granted without notice (Jafta judgment at 295
J);
(5) That in the circumstances it would be unwise to decide these and other
issues in the matter without hearing argument from all
the parties concerned
(Jafta
judgment at 296A - D); and
(6) That the application be dismissed, that no decision be given on the merits
of the appeal and that it be for the applicant to
decide whether to prosecute
the appeal in accordance with the normal rules of procedure
(Jafta
judgment at 296E).
In the result the appeal was not taken any
further and the questions left open in
Jafta'
s case remained unresolved;
and that was the position when proceedings were launched on motion in the two
matters now under consideration.
For the sake of brevity, I shall refer
14
to them as the
Shoba
case and the
Maphanga
case.
In the
Shoba
case the applicant, a seventeen-year-old schoolboy (who was
assisted in these proceedings by his mother, his legal guardian), was
arrested
by the police at his home in Bruntville, Natal on suspicion of having been
involved in arson committed in relation to the
hostel at Bruntville. He was
taken to various places at which he was interrogated by members of the police.
One such place was a
temporary camp at or near the Wagendrift Dam. Here, so the
applicant alleged, he was tortured by being subjected to electric shocks.
This
was done by means of an apparatus operated by the police and described by the
applicant as a square grey metal box, on top of
which there were two holes. From
these holes, which looked like plug sockets, there emerged wires over a metre
long and ending
15
with metal clamps. There were switches and coloured lights, which lit up when
the box was turned on. All this happened in January
1993.
In the founding
affidavit the applicant averred that he suffered pain and injury as a result of
these electric shocks, In a supporting
affidavit applicant's attorney, Mr
Varney, stated that he had been instructed by the applicant (duly assisted) to
bring an action
for damages against the Minister of Law and Order by reason of
the torture committed by members of the South African Police in the
course and
scope of their employment. Mr Varney proceeded to point out that it was likely
that the persons responsible for these
unlawful assaults would deny the
applicant's allegations and would do everything possible to conceal the truth.
For this reason it
was
16
essential that the applicant be given the opportunity to attempt to secure as
evidence the equipment that was used to torture him,
or at least to have the
existence of the equipment confirmed by independent observation. The only way to
achieve this would be to
allow the applicant, accompanied by his attorney, to
inspect the premises and point out the equipment, if still there. He further
submitted that it was in the interests of justice that the persons who had
custody of the torture equipment should not have notice
of the application,
since if they did have such notice it was likely that they would remove or
conceal the equipment and in that
way seek to defeat the applicant's rights to
justice.
Nevertheless, notice of the application was given to the respondents
cited, viz the Officer Commanding the Temporary Police
17
Camp at Wagendrift Dam (first respondent) and the Minister of Law
and
Order (second respondent). The form of order sought, which was
evidently
dictated by the
Jafta
decision, was one:
"1. Declaring that the Applicant would have been entitled in the circumstances
set out in this Application to have brought an Application,
to be heard in
camera for the relief set out in paragraphs 1.1 to 1.7
without notice
to
the Respondents
herein:
1.1 That the provisions of the Rules of Court with regard to the form and
service of this application are dispensed with in terms
of Rule of Court
6(12).
1.2 That the Registrar of this Honourable Court is to retain the file in this
matter in his/her custody and that no person having
any knowledge of the
contents of this application or of the fact that this application has been
brought is to disclose such facts
or any facts relating thereto to any other
person pending the execution of paragraph 1.4 (of) this order without leave
having been
granted by this Honourable
Court.
18
1.3 That the Officer Commanding Estcourt Prison, or the person in charge of the
prison for the time being, where the applicant is
presently being held, be
ordered to release the applicant immediately into the custody of the Deputy
Sheriff for the purposes of
carrying out the directions set out hereunder in
paragraph 1.4. On the completion of the execution or attempted execution of the
directions contained in paragraph 1.4, the Deputy Sheriff is ordered to return
the applicant to the custody of the Officer Commanding,
Estcourt Prison or to
the person in charge of the prison.
1.4 That the policeman or person in control of the structures and premises
(hereinafter referred to as 'the premises'), or the policeman
or person in
control thereof for the time being, referred to in paragraph 9 of the affidavit
of the applicant, permit attorney HOWARD
VARNEY of the firm of attorneys, LEGAL
RESOURCES CENTRE, and the applicant:-
1.4.1 To be granted immediate access to the premises upon being presented with
this order;
19
1.4.2
Thereupon to inspect the
premises and vehicles in the vicinity of the premises, for the purposes of
enabling the applicant to point
out and identify any apparatus and object which
may be present there; and capable of being used to administer electric shocks
and
in particular an instrument such as described in the affidavit of the
applicant;
1.4.3
To examine any apparatus or
object such as is referred to in sub-paragraph 1.4.2
above."
In addition there were prayers requiring the
terms of para 1.4 to be executed only in the presence of a deputy sheriff, who
was to
prepare an inventory of any such apparatus found on the premises, to
retain any such apparatus in his possession at the pleasure
of the Court and to
provide the parties with a copy of the inventory; requiring the applicant's
attorney to file an affidavit describing
the execution of the
20
order; and giving any interested party the right to set the matter down on
notice for further hearing or for variation of the order
or for the grant of
other relief (par 1.5, 1.(5 and 1.7).
The application was opposed by the
respondents upon a number of grounds, both legal and factual. As to the facts,
there is no dispute
about the applicant's arrest and the fact that he was
interrogated by the police, but it is denied "emphatically" that applicant
was
tortured, or that anyone was in possession of a square, grey metal box or that
the applicant was subjected to electric shocks.
I shall come later to the
various legal points taken in opposition to the application.
The matter came
before Hurt J in the Natal Provincial Division, who for reasons to be stated
later, dismissed the application
21
with costs, but gave leave to appeal to this Court. The case was heard and
judgment was delivered on 27 August 1993.
Just over a week later a similar
application was launched in the
Maphanga
case. The applicant in this case
(in which Mr Varney again acted as the attorney) alleged, too, that he had been
arrested and taken
to two police stations in Pietermaritzburg, where he was
assaulted. In the course of the assaults he was punched and kicked and motor-car
inner tubes were pressed against his face, preventing him from breathing; and
wires were pushed against him, causing sharp pain.
He later noticed on the
premises a black electric cord, one end of which appeared to be plugged in
behind a cupboard. The other end
of the cord consisted of three bare wires.
Shortly thereafter he was released. That night he was examined by a doctor,
22
who found multiple bruises over the whole of applicant's body;
wrist
trauma consistent with a history of his wrists having been tied with
sacking; a swollen upper lip; a small patch of blood in the right
ear canal; and
both nostrils filled with blood.
In a supporting affidavit Mr Varney stated
that he had been instructed by the applicant to bring an action for damages
against the
Minister of Law and Order by reason of the torture committed by
members of the South African Police in the course and scope of their
employment.
He proceeded to explain, as in the
Shoba
case, the need to have an
inspection of the premises in order to locate and identify the torture
equipment; and the reasons why the
persons having custody of the equipment
should not have notice of the application.
In the notice of motion, citing as respondents the
officers
23
commanding the two police stations and the Minister of Law and Order, orders
similar to those claimed in the
Shoba
case, apart from the declarator,
were sought. In addition, the applicant asked that the provisions of the Rules
of Court relating
to service of the application be dispensed with; that the
application be heard in camera; and that, in effect, pending the execution
of
the order sought, secrecy be maintained in regard to the application and the
contents of the papers filed (paras 1 and 2).
The matter came before Shearer
J in the Natal Provincial Division, ex parte and in camera. The learned Judge
dismissed the application
on the basis that the decision in
Jafta
's case
precluded him from hearing the matter without notice to the respondents. He
granted leave to appeal to this Court.
24
Thereafter the full papers in this matter were served on the respondents, who
have participated fully in the appeal. Because the two
cases, i e
Shoba'
s
case and
Maphanea
's case, involved similar issues the appeals were heard
together. The same counsel and attorneys acted for the appellants, on the
one
hand, and for the respondents, on the other hand.
On appeal a number of
points were argued. I shall deal with them in what appears to be their logical
sequence.
Declaration of Rights
This point pertains only to the Shoba appeal. In this case, it will be
recalled, the applicant actually gave notice to the respondents,
thus forfeiting
the surprise effect of an Anton Piller-type order. The order prayed (lid not
contemplate an actual inspection of
25
the premises in question and search for the alleged torture apparatus. What
was sought was a declaratory order that, in the circumstances
described by the
application, the applicant would have been entitled to move the Court, in
camera, and without notice to the respondents,
for an order permitting
inspection of the premises, etc. In fact, in his affidavit Mr Varney referred to
the
Jafta
case and stated that he had advised the applicant that in that
case the Appellate Division had declined to make an order without
notice to the
respondents. The affidavit continues:
"As I understand the case, however, the Court left it open to an Applicant to
persuade a Court after notice to all Respondents and
full argument, that an
order without notice, to be heard in camera, could still be made in appropriate
circumstances. I submit that
this is in the nature of a test case and that a
decision will assist litigants in future who are faced with
similar
26
circumstances."
In the Court a quo the issue was raised as to whether in such circumstances
the Court had the power to make a declaratory order such
as that sought by the
applicant (now the appellant, but whom I shall continue to call the
"applicant"). The applicant relied on sec
19(l)(a)(iii) of the Supreme Court
Act, 59 of 1959, which empowers a provincial or local division of the Supreme
Court -
" . . . in its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon this determination."
In this
regard Hurt J stated in his judgment -
27
"The section empowers a Court to 'enquire into and determine any existing,
future or contingent light or obligation'. What the applicant
is seeking to do
in this case is (if one gives the wording of the Notice of Motion its literal
meaning and effect) to ask this Court
to rule that in the situation as existed
in January 1993 the applicant would have been entitled to a procedural order on
an application
brought in camera and without notice to the
respondents."
Having emphasized that the question as
to whether the applicant was entitled to any form of interim relief was a
procedural one and
that the Court had a discretion in the matter, the learned
Judge continued:
"Accordingly it seems to me that what this Court is now being asked to enquire
into is not really the determination of an existing,
future or contingent right,
but a question of whether there were good prospects of success, to put it
roughly, available to the applicant
if he had moved for urgent relief in camera
in January 1993.
It follows that I do
not consider that this is a case in
28
which the Court is being asked to enquire into a matter which falls under
section 19(l)(a)(iii) of the Supreme Court Act even though
the question at issue
in this application is obviously an important one and even though it would be
most desirable to have a ruling
by the Courts on the question of whether the
statutes which are referred to in
Jafta
's case may prove to be a bar to
relief in camera in the type of situation contemplated in this application. I
unfortunately do not
consider that I have the power, especially sitting as a
Judge of first instance, to grasp the nettle and resolve the question which
the
applicant implicitly poses in this application."
I agree with Hurt J. Generally speaking, the Courts will not, in terms of sec
19(l)(a)(iii), deal with or pronounce upon abstract
or academic points of law.
An existing or concrete dispute between persons is not a pre-requisite for the
exercise by the Court of
its jurisdiction under this subsection, though the
absence of such a dispute may, depending on the circumstances, cause the Court
to refuse to
29
excercise its jurisdiction in a particular case (see
Ex parte Nell
1963 (1) SA 754
(A), at 759H - 760B). But because it is not the function of the
Court to act as an adviser, it is a requirement of the exercise of
jurisdiction
under this subsection that there should be interested parties upon whom the
declaratory order would be binding
(Nell
's case, at 760B - C). In Nell's
case, supra, at 759A - B, Steyn CJ referred with approval to the following
statement by Watermeyer
JA in
Durban City Council v Association of Building
Societies
1942 AD 27
, fit 32, with reference to the identically worded sec
102 of Act 46 of 1935:
"The question whether or not an order should be made under this section has to
be examined in two stages. First the Court must be
satisfied that the applicant
is a person interested in an 'existing, future or contingent right or
obligation', and then, if satisfied
on that point, this Court must decide
whether the case is a proper one for the exercise of the discretion conferred on
it."
30
I shall assume in applicant's favour that the subsection applies to
procedural rights, as well as substantive rights. Even on that
assumption I do
not see how the declaration sought by this applicant could be regarded as
relating to an existing, future or contingent
right. By the time the matter was
heard by Hurt J the applicant no longer sought or wished to seek orders for the
inspection of the
premises and a search for the torture apparatus. He merely
wanted to be advised whether, had he made application in camera and without
notice in January 1993, he would have been entitled to obtain such orders. This
does not seem to me to be covered by the powers granted
the Court under sec
19(l)(a)(iii) of the Supreme Court Act. It is not a matter upon which the
judgment of the Court would be binding
on the interested parties. Accordingly,
the arguments of
31
applicant's counsel notwithstanding, I am of the opinion that Hurt J
correctly refused to make an order under this subsection.
In the Court below applicant's counsel, in the course of argument, moved an
amendment of the notice of motion, which in the words
of Hurt J -
"... would have effectively removed the prayer for relief in the form of a
declarator and substituted therefor relief in the form
of an order granting the
applicant the right to proceed, as set out in paragraphs 1.1 to 1.7 of the
Notice of Motion."
On appeal applicant's counsel
pursued the application for an amendment, as an alternative to his main argument
to the effect that
the Court should have made an order under sec
19(l)(a)(iii).
Hurt J refused the amendment on the ground that the
32
respondents would be irreparably prejudiced if it were granted at that stage.
I am not persuaded that the learned Judge exercised
his discretion improperly
and consequently this alternative argument, based upon an application for an
amendment, fails.
These conclusions are fatal as far as the appeal in
Shoba
's case is concerned.
I turn now to the other points which are
common to both cases but which are now academic in
Shoba
's case.
Anton Filler: A General Remedy
?
At this point it is necessary to give a decision in regard
to what was left open in both the
Universal City Studios
case, supra,
and
Jafta'
s case, supra, viz whether an Anton Piller
order directed at
the preservation of evidence should be accepted as part of
our practice.
33
In my view, it should; and I would define what an applicant for such an
order, obtained in camera and without notice to the respondent,
must prima facie
establish, as the following:
(1) That he, the applicant, has a cause of action against this respondent which
he intends to pursue;
(2) That the respondent has in his possession specific (and specified) documents
or things which constitute vital evidence in substantiation
of applicant's cause
of action (but in respect of which applicant cannot claim a real or personal
right); and
(3) That there is a real and well-founded apprehension that this evidence may be
hidden or destroyed or in some manner be spirited
away by the time the case
comes to trial or to the stage of discovery.
34
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 Matshini
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
non-availability at the trial would result in the administration
of justice
being defeated (at 613A - C). As I suggested in
Jafta'
s case (at 294A),
this poses too stringent a test.
The Court to which application is made for
such an Anton Piller order has a discretion whether to grant the remedy or not
and, if
it does, upon what terms, In exercising this discretion the Court will
pay regard, inter alia, to the cogency of the prima facie
case
35
established with reference to the matters listed (1), (2) and (3) above; 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
onerous than is necessary to protect the interests of the applicant.
The acceptance of the Anton Piller principle in regard to the preservation of
evidence on the basis set forth above means that, to
the extent to which they
are in conflict with this, the judgments in the
Economic Data. Cerebos
Food
and
Trade Fairs
cases must be taken to be overruled.
It is
not necessary in this case to decide whether the Anton Piller principle has any
scope in our law other than what is
36
indicated above.
The above-stated formulation in regard to the
preservation of evidence is in general terms. It was submitted, however, by
respondent's
counsel that the Anton Piller remedy was essentially one designed
for litigation in the intellectual property field and that it should
be limited
to those classes of cases. In this connection counsel referred to certain
remarks by Lord Wilberforce in the English case
of
Rank Film Distributors Ltd
and others v Video Information Centre and others
[1981] UKHL 4
;
[1981] 2 All ER. 76
(HL),
at 78g - h, to the effect that the Anton Piller order was designed to deal with
situations created by infringements of patents,
trade marks and copyright and
more particularly with acts of commercial piracy in these fields. That the Anton
Piller procedure originated
in this way is beyond question; but
37
the English decisions show that the procedure has been extended to other
classes of cases as well. Thus, in
Yousif v Salama
[1980] 3 All ER 405
(CA) an Anton Piller order was made for the preservation of documents which were
"the best possible evidence to prove the plaintiffs
case" (but which were not
the subject matter of the action) in a commercial dispute between a supplier of
goods for re-sale and his
distributor under a profit-sharing agreement. In a
similar kind of dispute an Anton Piller order was granted after judgment in
order
to elicit and preserve documents relating to the defendant's assets and
essential to the execution of the judgment
(Distributori Automatici Italia
SpA v Holford General Trading Co Ltd and another
[1985] 3 All ER 750
(QBD)
). And in
Emanuel v Emanuel
[1982] 2 All ER 342
(Fam D) an Anton Piller
order for the preservation of documents
38
required as evidence, but not themselves the subject matter of the
proceedings, was granted in the Family Division in a matrimonial
(post-divorce)
dispute. There is, so far as I am aware, no authority in English law suggesting
that these cases were incorrectly
decided or that the Anton Piller procedure
should be confined to intellectual property cases. (See also
Universal
Thermosensors Ltd v Hibben and others
[1992] 3 All ER 257
(Ch) ).
In this
country the Anton Piller procedure has been used mainly in the intellectual
property field, but in other areas as well, more
particularly in applications
similar to those under consideration in these appeals. In this regard I would
refer particularly to
Ex parte Matshini and Others
1986 (3) SA 605
(E)
and
Ex parte Dyantyi and Another
1989 (4) SA 826
(CkGD). In
Matshini'
s case an Anton Piller
39
Piller order was refused because, so the Court held, the real evidence in
question (torture apparatus) was not shown to be "essential"
or "absolutely
necessary" in order for the applicants to prove their claims. (See my remarks
above as to the correctness of this
test.) At this same time the Court appears
to have accepted that otherwise and in principle there was no reason why in that
case
an order for the preservation of the evidence by way of an Anton Piller
order should not be granted (see judgment at 609E - H). In
Dyantyi
's case
an Anton Piller order for the pointing out and identification of torture
apparatus at certain security police headquarters
was granted. According to an
article by M C Flasket entitled "The Final Word on Anton Filler Orders Against
the Police" and published
in
(1992) 8 SAJHR 569
, the premises in question were
searched in pursuance of
40
this order and certain of the articles were found; and subsequent claims for
damages were settled. Mr Flasket also makes mention in
his article of similar
Anton Piller orders granted in five other cases, in four of which torture
equipment was found.
As a matter of legal policy, I can see no reason why the
Anton Piller procedure should be confined to intellectual property cases;
or
indeed why it should not extend to cases such as those under consideration in
these appeals. The torture of persons in police
custody is a very serious matter
indeed and where a person alleges that he has been so tortured and wishes to sue
for damages the
Court should not be tardy in coming to his assistance by way of
an Anton Piller order for the discovery and identification of torture
equipment
in the possession of the police, provided that the three requisites which
41
I have listed above are satisfied. Evidence of the existence of such
equipment would in most instances be vital or critical in any
such action for
damages, even though it might not be the only evidence of assault. Inspection of
the premises in question in pursuance
of such an Anton Piller order would, in
normal circumstances, not cause more than minor inconvenience to the police,
often far less
than that caused to a potential defendant in an intellectual
property suit. On the other hand, refusal of such an order in a deserving
case
could result in a subsequent denial of justice. Naturally the Courts should be
careful to ensure that the Anton Piller procedure
is not used indiscriminately
or as an instrument to harass the police or other potential defendants, but this
should not occur if
the Court gives careful attention to the above-mentioned
three requisites and exercises its discretion with good
42
judgement.
In the case of
Krygkor Pensioenfonds v Smith
[1993] ZASCA 47
;
1993 (3) SA
459
(A), at 469E - I, reference was made to the traditional reluctance of the
Courts to depart from the procedures laid down by the Rules
of Court and to the
fact that only in exceptional cases will they exercise their inherent
jurisdiction to follow procedures not so
laid down. With reference thereto E M
Grosskopf JA, delivering the judgment of the Court, stated (at 469H - I):
"Die uitsonderlike gevalle word op verskillende maniere omskryf in die
beslissings wat hierbo aangehaal is. Vir huidige doeleindes
is dit egter genoeg
om te sê dat die Hof hierdie bevoegdheid sal uitoefen net waar
geregtigheid vereis dat afgewyk word van
die gewone prosedure-reëls. En
selfs waar 'n afwyking nodig mag wees, sal die Hof natuurlik altyd poog om so
naby as moontlik
aan die erkende praktyke te bly."
43
In my view, Anton Piller procedure in matters such as those now under
consideration constitute appropriate exceptions to the normal
rules of
procedure.
For these reasons, I am of the view that the submission by
respondents' counsel that the Anton Piller order should be confined to
intellectual property cases is not well-founded; and that it may be employed in
cases where the applicant seeks an order for the
discovery and preservation of
evidence, as for example torture apparatus in the possession of the police.
This, of course, is premised
by the assumption that there is no statutory or
other bar to the grant of such an order. It is to this aspect of the matter that
I now turn.
Sec 35. General Law Amendment Act.
1955
Sec 35
of the General Law
Amendment Act, 62 of 1955,
44
provides as follows:
"Notwithstanding anything to the contrary contained in any law, no court
shall issue any rule nisi operating as an interim interdict
against the
Government of the Union including the South African Railways and Harbours
Administration or the Administration of any
Province, or any Minister,
Administrator or other officer of the said Government or Administration in his
capacity as such, unless
notice of the intention to apply for such a rule,
accompanied by copies of the petition and of the affidavits which are intended
to be used in support of the application, was served upon the said Government,
Administration, Minister, Administrator or officer
at least seventy-two hours,
or such lesser period as the court may in all the circumstances of the case
consider reasonable, before
the time mentioned in the notice for the hearing of
the application."
It was this statutory provision, primarily, which gave us pause in the
Jafta
case, supra. Now, however, the matter has been
45
fully argued by the interested parties and we are in a position to decide
whether sec 35 constitutes a bar to the grant of an Anton
Piller order against
the South African Police and/or the Minister of Law and Order.
It has been
held that sec 35 is peremptory to the extent that notice of at least 72 hours,
or such lesser period as the Court may
allow as being reasonable, must be given
of an application falling within the ambit of the section
(Maharaj Brothers v
Pieterse Bros Construction (Ptv) Ltd and Another
1961 (2) SA 232
(N);
Xaba and Others v Bantu Affairs Commissioner. Newcastle
1968 (1) SA 193
(N), at 195C - D). In
Xaba
's case, however, it was held that the section
did not preclude an urgent application being made against an officer of the
Government
on oral evidence.
46
In terms, sec 35 applies only to an application for a "rule nisi operating as
an interim interdict". The term "rule nisi" is derived
from the English law and
practice, and the rule may be defined as an order by a Court issued at the
instance of the applicant and
calling upon another party to show cause before
the Court on a particular day why the relief applied for should not be granted
(see
Van Zyl's
Judicial Practice
. 3 ed, 450 ff et seq;
Tollman v
Tollman
1963 (4) SA 44
(C), at 46H. Walker's
Oxford Companion to Law
,
sv "nisi", states that a decree, rule or order is made nisi when it is not to
take effect unless the person affected fails within
a stated time to appear and
show cause why it should not take effect. As Van Zyl points out, our common law
knew the temporary interdict
and a "curious mixture of our practice with the
practice of England" took place and the practice
47
arose of asking the Court for a rule nisi, returnable on a certain day, but
in the meantime to operate as a temporary interdict.
In determining whether
an Anton Piller order falls within the ambit of "a rule nisi operating as an
interim interdict", account must
be taken of the principle that a statutory
provision which clogs or hampers the ordinary rights of an aggrieved person to
seek the
assistance of the courts should be restrictively construed and not be
extended beyond its expressed limits
(Benning v Union Government (Minister of
Finance)
1914 AD 180
, at 185;
Avex Air (Pty) Ltd v Borough of Vryheid
1973 (1) SA 617
(A), at 621F - G;
Administrator. Transvaal and Others v Traub
and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A), at 764E - F). Taking due account of this
principle, I am of the opinion that an Anton Piller order such as that sought in
these
two
48
cases cannot be regarded in law as a "rule nisi operating as an interim
interdict". A rule nisi, as I have indicated, contemplates
that the relief
sought will only be granted at some future date after the respondent has had
time to show cause that it should not
be granted. The Anton Piller order, on the
other hand, grants immediate relief and requires the respondent forthwith - and
without
any opportunity to voice opposition - to submit to the search of his
premises and to the other demands of the order. A rule nisi
usually relates to
substantive relief; the Anton Piller order relates merely to procedural relief,
viz the preservation of evidence,
to be used for ultimately securing the
substantive relief. It is true that a rule nisi is sometimes incorporated in an
Anton Piller
order as a means of giving the respondent the opportunity to
contest the matter and have the order set aside, but
49
more often than not (as in the
Shoba
case) the order sought contains a
provision, not in the form of a rule nisi, entitling the respondent to apply, on
notice, to vary
or discharge the order (cf also
Jaffa
's case, supra, at
289D). In
Maphanga
's case the order prayed contains neither. Furthermore,
the interim interdict attached to a rule nisi usually seeks to maintain the
status quo ante; whereas an Anton Piller order gives instant relief, subject to
the possibility of a later variation or discharge
of the order.
While a
decision that an Anton Piller order against, for example, the Minister of Law
and Order is not debarred by sec 35, does undoubtedly
give rise to anomaly (see
Jafta
's case, at 295G - I), that is not, in my opinion, sufficient ground
for differently interpreting sec 35. And in this regard it must
be borne in mind
that sec 35 was
50
enacted long before the Anton Piller procedure was devised.
For these reasons, I hold that sec 35 did not protect the respondents against
the issue of an Anton Piller order in the
Maphanga
case.
Section 3.
State Liability Act, 1957
The next statutory bar relied
upon by respondents' counsel was
sec 3
of the
State Liability Act, 20 of 1957
.
At the relevant time this section read as follows:
"No execution, attachment or like process shall be issued against the
defendant or respondent in any such action or proceedings or
against any
property of the State, but the amount, if any, which may be required to satisfy
any judgment or order given or made against
the nominal defendant or respondent
in any such action or proceedings may be paid out of the Consolidated Revenue
Fund."
51
This section does not assist the respondents. Assuming that certain of the
relief asked for in the
Maphanga
case, e g that authorising the Deputy
Sheriff to retain the apparatus or object found and placed on his inventory
until the Court
otherwise orders, would amount to an "attachment or like
process" in terms of the section, it seems to me that an insuperable difficulty
confronting the respondents is the fact that the section applies only to the
attachment of"property of the State", In the ordinary
course, so I am inclined
to think, the onus of establishing the factual applicability of
sec 3
would rest
upon the party relying upon it (cf
Thome v Union Government
1929 TPD 156
,
at 159). There is no evidence to suggest that the alleged torture apparatus (if
it exists) belongs to the State. On the contrary,
it may be accepted that, if
discovered, such apparatus would probably be
52
disowned by the State. It is not necessary to pursue these points (or to
decide them), however, since counsel for the applicant, having
given notice
thereof in his heads or argument, moved an application before us for the
amendment of certain prayers in the notice
of motion. The amendments in effect
provide for the photographing of any such apparatus and eliminate the prayer for
the retention
of possession thereof by the Deputy Sheriff. The application for
amendment was not opposed by the respondents and, in my view, it
should be
granted. Respondents' counsel conceded, as I understood him, that once this
amendment was granted,
sec 3
ceased to have any relevance. I agree.
Public
Policy
It was submitted on respondents' behalf that it would be contrary to
public policy to permit Anton Piller order to be granted
53
in a case such as the present one. In this connection two points were
made:
(1) In principle the primary duty to investigate crime and to prosecute rests
upon the State and, if evidence of a crime exists,
public policy requires that
evidence tending to prove the commission of such a crime should be protected
until the State has decided
whether to prosecute or not. To permit private
individuals to conduct their own investigations into criminal offences would be
m
conflict with these principles.
(2) The granting of an Anton Piller order in a case such as this conflicts with
the individual's privilege against
self-mcrimination.
There is no substance in these
points. As to (1),
54
accepting the principles postulated, what is involved here is not an
impermissible investigation into a criminal offence by a private
individual but
an attempt, by means of an order of Court, to preserve evidence required in a
civil case to redress a civil wrong.
The fact that the civil wrong may also
constitute a criminal offence is, in my view, of no moment. I know of no
authority, and none
was quoted to us, which establishes that, because a certain
action constitutes a criminal offence as well as a civil wrong, the victim
of
both is not entitled to pursue his civil remedy and collect evidence to
substantiate his claim. It is true that when the civil
claim comes to court, the
proceedings may, on application, be stayed pending the finalisation of criminal
proceedings relating to
the same facts. This may be done in the interests of
justice if the accused can show prejudice to himself in
55
the criminal proceedings if the civil action were to be heard first (see
Harms
Civil Procedure in the Supreme Court
. L 11, p 343). But that is a
different matter altogether. And, in any event, there is no suggestion of a
criminal prosecution in
the present case.
As to (2), no question of
self-incrimination arises. The Anton Piller order prayed for does not involve,
nor is it likely to lead
to, any admissions or incriminating conduct on the part
of a potential accused person. It simply entails a search of police premises
for
torture apparatus; and requires whoever happens to be in charge of the premises
at the time to give the applicant, his attorney
and the Deputy Sheriff access to
the premises and to allow the search to take place. In connection with this line
of argument respondents'
counsel referred to the
Rank Film
case, supra.
The authority is against him
56
since it is clear that orders requiring the respondents in that case to allow
access to the premises for the purpose of enabling the
appellants to look for
illicit copy films and to allow their being removed to safe custody, were held
not to involve or impinge upon
the privilege against self-incrimination (at 80 c
- e).
For these reasons I hold that there is no statutory or other bar to the
grant against the respondents in the
Maphanga
case of an Anton Piller
order in the form sought by the applicant. As to the factual merits, it seems to
me that the applicant established
(i) a strong prima facie case of having been
assaulted and tortured while in police custody; (ii) that he intended to pursue
against
the second respondent a civil action arising from such assault and
torture; (iii) that, if it existed, the torture apparatus would
be vital
evidence in such a civil
57
action; and that there was a real and well-founded apprehension that such
apparatus, if it existed, would be hidden or destroyed before
the matter came to
trial. This was hardly in dispute. In my opinion, the Court a quo should,
therefore, have granted Anton Piller
order in this case. Although such an order
is almost certainly academic at this stage, I shall substitute for the order of
Shearer
J an order which accords with the conclusions reached in tills
judgment.
In regard to the form of the order, there are four points to be
made. Firstly, the prayers must be altered in accordance with the
amendments
which are to be granted. Secondly, in contrast to the
Shoba
application,
the prayers in the
Maphanga
application do not contain provision for an
interested party to set the matter down on notice for further hearing or for
variation
of the order or for the grant
58
of other relief. This should be remedied. Thirdly, in formulating the order I
have otherwise followed the wording of the prayers in
the notice of motion, but
restricted their scope in certain respects and made a different order as to
costs. (See below). I do not
wish to be understood to convey that this is a
model order or that it and the procedure which it establishes cannot be improved
upon.
Because of the academic nature of the order this is not a matter of
importance; and in any event it was not debated with counsel.
Fourthly, inasmuch
as Shearer J heard the matter ex parte and in camera, prayers 1 and 2 of the
notice of motion fall away.
Finally, there is the question of costs. The
appeal in the
Shoba
case fails and that in the
Maphanga
case
succeeds. In each case costs will follow the event. As I have indicated,
however, the
59
same counsel and attorneys acted in both cases. Moreover, the two cases were
argued together, all the issues, apart from that relating
to the declaration of
rights in the
Shoba
case, being common to both cases. This may cause
problems in sorting out the costs of the hearing of the appeal and, in this
regard,
I would indicate for the guidance of the Taxing Master that the argument
on the declaration of rights issue occupied approximately
one-quarter of the
time of the hearing and the other issues approximately three-quarters. The
application for the amendment of the
prayers in the notice of motion in the
Maphanga
case did not, in my estimation, occasion any wasted costs and no
order in regard thereto need be made. As regards the costs of the
application in
the Court a quo the relevant prayer in the notice of motion asked that these be
ordered to be paid by the respondents.
60
But, in my view, such an order would be premature. Much would depend in a
case such as this on what the inspection revealed. The award
of such costs
should consequently be left to the decision of the Judge who hears the action
for damages foreshadowed in the application.
Accordingly it is ordered: I That the appeal in the matter of
Shoba v The
Officer Commanding the Temporary Police Camp at Wagendrift Dam and Another
be dismissed with costs, such costs to include the costs of two counsel.
II That as regards the appeal in the matter of
Maphanga v The Officer
Commanding. SAP Murder and Robbery Unity.
Cnr
61
Edendale & Camps Drift Roads. Pietermaritzburg and Others
-
(1) the application for the amendment of prayers 3(c) and 4(b) of the notice of
motion is granted;
(2)
the appeal is allowed with
costs;
(3) the order of the Court a quo is set aside and there is substituted the
following order:-
"(a) That the Officers Commanding or the policeman in control of the structures
and premises at the Murder and Robbery Unit, comer
Edendale and Camps Drift
roads (known as Halfway House) and Loop Street police station in
Pietermaritzburg ("the premises") permit
attorney Howard Varney of the Legal
Resources Centre and/or candidate attorney Ian Dutton of the firm of attorneys
Volsum, Chetty
and Lax and the
applicant:-
62
(i) to be granted immediate access to the premises upon being presented with
this order;
(ii) thereupon to inspect the premises for the purpose of enabling the applicant
to point out and identify the apparatus used to
administer electric shocks as
described by him in his affidavit;
(iii) to examine and photograph any such apparatus referred to in sub-paragraph
(ii) above;
(b) That the terms of paragraph (a) above be executed only in the presence of
the Deputy Sheriff, who is directed -
(i) to prepare a detailed inventory of any such apparatus found on the premises;
and
(ii) to provide the applicant's attorney and the first and second respondents
with a copy of such inventory;
63
(c) That the applicant's attorney Ale with this Court an affidavit setting forth
the manner in which this order was executed, the
portion of the premises
inspected and the observations made by the applicant's attorney in the course of
such inspection; and that
a copy of such affidavit, together with the documents
filed in these proceedings and the Court's order be served upon the
respondents;
(d) That any interested party is given leave to apply to this Court, on not less
than 24 hours written notice, for the variation
or setting aside of this order
or for any other appropriate relief; and to file such affidavits as may be
necessary in connection
therewith.
(e) That the question of the costs of this application is reserved for decision
in the action foreshadowed in Mr Varney's affidavit.
If such action is not
instituted within three weeks of the date of
this
64
order, the applicant is ordered to pay the costs of the application".
M M CORBETT
E M GROSSKOPF JA) NESTADT JA) STEYN JA) CONCUR
NICHOLAS AJA)