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order without being accompanied by an IT expert and a
supervising attorney, whose presence was necessary to
preserve the evidence sought to be procured in the
execution of the order.
Upon becoming aware of the Anton Piller proceedings
the applicants brought an application to reconsider Strydom
J’s order. Affidavits were filed but the application was
never set down, since Incredi M ed decided , for what it called
commercial reasons, not to pursue the main action in
connection with which the Anton Piller order was procured.
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It tendered the return of the property seized in the
execution of the Anton Piller order.
Given that the main action was not to be pursue d, the
applicants asked IncrediMed to tender the costs of the
Anton Piller proceedings and the reconsideration
application . IncrediMed took the view that it need not tender
those costs , since , so it said, it was always justified in
seeking and obtaining the Anton Piller relief, even though it
no longer intended to pursue the main action .
Before me the applicants never theless seek the costs
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of the Anton Piller proceedings, the reconsideration
application and the costs of today, being the application for
costs itself.
Anton Piller relie f is an extraordinary invasion of the
right to privacy of those who are subject to it. The
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extraordinary nature of the relief involves a search being
conducted of persons and property , and other potential
invasions of privacy, which a court would not usually
countenance.
In extraordinary circumstances , a court will grant
Anton Piller relief, if the case has been made out that the
applicant intends to pursue a specific cause of action, and
reasonably believes that evidence vital to make out that
cause of action is in possession of the respondent and is in
danger of being destroyed or spirited away.
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It is critical in an Anton Piller application to assure
the court that there is a cause of action to which the
evidence sought to be discovered is relevant, and that the
cause of action identified will be pursued.
It is only because the potential loss or destruction of
the evidence sought to be recovered may amount to a
violation of the right of access to court that Anton Piller
reli ef is constitutionally justified. Otherwise, the extremely
invasive nature of the relief could not be justified at all.
I think it follow s from these basic principles that if a
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litigant secures an Anton Piller order, conducts the search
but then decides, after all, not to pursue the action to which
the evidence seized was said to be relevant, then th at
litigant ought to pay the costs of the Anton Piller
proceedings themselves.
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It is not enough , in my view, that the litigant thought
that they were justified in obtaining the Anton Piller order at
the time the order was applied for. Because the litigant is
not entitled to Anton Piller relief unless it has assured the
court that it has a cause of action that it intends to pursue,
the very least the litigant would have to do, in order to
shield itself from a cost s order, would be to actually pursue
that cause . IncrediMed chose not to pursue its action. That
means it never needed the Anton Piller order in the first
place, and that, in hindsight, the Anton Piller order should 10
not have been applied for. IncrediMed must bear the
consequences of the unnecessary invasion of the
applicants’ privacy that it engineered.
The applicants seek an attorney and client costs
order . They contend that IncrediMed should have tendered
their costs as soon as it decided not to pursue the main
action.
Given the principles that I have set out, that tender
plainly should have been made, in that IncrediMed should
have realised that the game was up , and that, strictly
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speaking , th ere turned out to have been no need to ask for
an Anton Piller order in the first place.
I n my view , there can be few clearer cases in which a
tender for costs should have been made. The failure to
make an appropriate tender, together with IncrediMed’s