About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2013
>>
[2013] ZAWCHC 85
|
|
Ex Parte: Nel and Another, Nel and Another v Pinnacle Point Home Owners Association and Another (1869/2012) [2013] ZAWCHC 85 (29 May 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
REPORTABLE
Case no: 17869/2012
In the ex parte
application of:
ALBERTUS JOHANNES
NEL .
......................................................
First
Applicant
DISCOUNT 4 U CC
.....................................................................
Second
Applicant
In re:
ALBERTUS JOHANNES
NEL
.......................................................
First
Applicant
DISCOUNT 4 U CC
.....................................................................
Second
Applicant
and
PINNACLE POINT
HOME OWNER’S ASSOCIATION
.........
First
Respondent
FREDERICK CARL
VAN DER LINDE
...............................
Second
Respondent
JUDGMENT:29MAY
2013
Schippers J:
The applicants seek
confirmation of an Anton Piller order, and an order directing the
respondents to pay the costs of this application.
They sought and
obtained the order against the respondents,
ex parte
and
urgently, on 14 September 2012. In terms of the order, the sheriff
was authorised to enter the administration offices of
the first
respondent at 1 Pinnacle Point, Mossel Bay, and any vehicles on that
premises, for the purpose of searching the “
pinnaclepointestate
”
server, the hard drive of any personal computer, notebook or laptop
and any external data storage device on the premises,
for the
documents listed in annexure A to the order (“
the listed
items
”); printing out and making copies of the listed
items found; and delivering printouts or copies of the listed items
to
the sheriff.A rule
nisi
was issued, returnable on 17
October 2012, calling upon the respondents to show cause why an
order in the following terms should
not be made: (a) why the listed
items in the possession of the sheriff pursuant to the execution of
the Anton Pillerorder, should
not be retained by him pending the
directions of the Court; and (b) why the costs of the application
should not stand over for
determination in an action to be
instituted by the applicants against the respondents.
The listed items
comprise e-mails sent and received by various members of the Board
of Directors of the first respondent (“
the Board
”);
copies of correspondence between the applicants and respondents; and
all documents relating to a decision, allegedly
taken by the Board
on 1 February 2012, to appoint the first or second applicants as the
service provider responsible for managing
the clubhouse and golf
course at the Pinnacle Point Beach and Golf Resort (“
Pinnacle
Point
”).
The stated purpose
of the Anton Piller order was to preserve evidence pending the
finalisation of an action for damages in the
sum of R319 200.00,
arising from the first respondent’salleged repudiation of a
contract concluded on or about 1 February
2012with the applicants.
On 27 September 2012 the applicants instituted that action against
the respondents.
The rule
nisi
issued by this Court on 16 September 2012 was subsequently extended
to 9 May 2013 when the matter came before me.
The respondents
oppose the application. They contend that the order should not have
been granted in the first place because no
case was made out in the
founding papers; that the application amounts to an abuse of
process; and that the applicants should
pay costs on a punitive
scale. However, the respondents do not insist that the documents
obtained by the sheriffpursuant to execution
of the order, should be
returned to them.
It is settled that
an Anton Piller order is an interlocutory order and as such, may be
corrected, altered or set aside by the
court which granted it at any
time before final judgment, or by a court of concurrent
jurisdiction.
1
An applicant for an
Anton Piller order must
prima
facie
establish:
(1) that he has a cause of action against the respondent which he
intends to pursue; (2) that the respondent has in
its possession
specific (and specified) documents or things which constitute vital
evidence in support of the applicant’s
cause of action; and
(3) that there is a real and well-founded apprehension that this
evidence may be hidden, destroyed or somehow
spirited away before
discovery or by the time the case comes to trial.
2
A court has a
discretion whether or not to grant an Anton Piller order and upon
what terms. In the exercise of this discretion,
the court has regard
inter alia to: the cogency of the
prima
facie
case
in relation to the requirements listed in (1), (2), and (3) above;
the potential harm to the applicant if the remedy is refused
as
compared with the potential harm to the respondent if it is granted;
and whether the terms of the order is more onerous than
is
necessary.
3
Returning to the
present case, the basic facts are these. The first respondent is
responsible for the management of the golf course
and other
amenities at Pinnacle Point. In terms of a written contract with the
first respondent, the second applicant was appointed
as the service
provider responsible for managing the club house and golf course at
Pinnacle Point, for the period 1 September
2011 until 31 January
2012, when that contract expired. I shall refer to that contract as,
“
the expired contract
”.
The applicants’
prima facie
cause of action, as it appears from the founding
affidavit, is this. At its meeting held on 1 February 2012,the Board
took a
decision to employ the first applicant, MrAlbertusJ Nel
(“
Nel
”), on a fixed termcontract for a period of
12 months ending 28 February 2013 (“
the alleged offer
”).
A contract came into being on 2 February 2012when Mr Carl Van der
Linde (“
Van der Linde
”), an employee of the first
respondent, verbally informed Nelof the alleged offer, which he
accepted.
On 24 February 2012
Nel received from Van der Linde, the minutes of the Board meeting of
1 February 2012, which the applicants
say, confirmed what Van der
Linde had told Nel regarding the appointment. Item 8.2 of the
minutes reads as follows:
“
SL queried whether the
golf course cannot continue to be run by CVL and BertuNel for the
next 12 months at least as opposed to tendering
for a new service
provider/golf manager. CVL reiterated that the golf course should be
self-sustainable. JJ stated that there was
underlying work that
needed to be done and so he urged caution in continuing to run the
course on a “shoestring” budget.
FO stated that the R
950 000 in reserve made up for any shortfall. However, the key
question is whether BertuNel is manageable
for the next period of 12
months. CVL stated that he had only received positive feedback on
Bertu’s performance from the
homeowners, however stated that
the club cannot continue to hire him on the current ‘month-to-month’
basis. HO stated
that he believed BertuNel to be an asset to the club
and a good manager, however he needed to be managed correctly. CVL
stated
that BertuNel had no control over the finances of the club so
there was no need for concern in that regard. JJ stated that he was
opposed to BertuNel’s appointment as manager from the point of
view that he does not want to expose the homeowners to any
risk. He
stated that there was an investigation being held into the
disintegration of the Mossel Bay Golf Course that BertuNel
ran and
that he could not justify ignoring better candidates that have
tendered for the job in favour of BertuNel.
The
remainder of the board decided to employ BertuNel on a fixed term 12
(twelve) month contract on the basis that throughout this
period he
would be carefully managed and assessed
.
In the meantime, the tenders would still need to be submitted to the
board for consideration as per the request from the members
flowing
out of the SGM and AGM held in December 2011.
”
4
On 25 July 2012
Nel’s services in managing the clubhouse and the golf course,
which the respondents say were rendered on
a month-to-month basis,
were terminated. The first respondent tendered payment to Nelof one
month’s notice of cancellation
for August 2012 and an
additional
ex gratia
amount of R40 000.00 in full and
final settlement of the contractual relationship between the
parties. The next day i.e.
26 July 2012, Nel was given notice that
he no longer needed to render any services in August 2012. This
notice the applicants
accepted as a repudiation of the alleged
contract.
The respondents
deny that there was any offer at all.They say that the Board did not
take any decision to offer Nel a contract
for 12months at its
meeting on 1 February 2012, as it was obliged to follow a directive
of the first respondent’s Annual
General Meeting (AGM) in
December 2011 to call for tenders for the management of the
clubhouse and golf course, which had to
be considered before a
formal and long term appointment could be made; and that Nel’s
contract was on a month-to-month
basis terminable by either party on
30 days’ notice.
The question which
then arises is whether theapplicants have established,
prima
facie
, that the Board made the alleged offer, or indeed any
offer, with the intention of creating an obligation, which upon
acceptance
would give rise to an enforceable contract.
A contract is an
agreement entered into with the intention of creating an obligation
or obligations.
5
The
basis of a contract is consensus or a meeting of the minds of the
parties.
6
An
agreement is reached when there is consensus between the parties
that they intend to create between them an obligation with
a
specific content. The agreement must encompass: (a) the fact that
obligations are to be created; (b) the persons between whom
the
obligations are to be created; and (c) the content of the
obligations, i.e. the performances to be rendered.
7
An agreement is
normally reached by way an offer and acceptance. The offer is a
statement of intention in which the offeror sets
out what
performance and on what terms it is prepared to contract. It must
contain the terms necessary to constitute a valid
contract.
8
The offer must
contemplate acceptance and a resultant obligation.
9
Applying the law to
the facts, it appears to me that there is no
prima facie
proof
of the existence of an offer by the first respondent, let alone a
contract. The alleged offer does not contain any terms
upon which
the first respondent was prepared to contract. Mr. Smit, who
appeared for the applicants, initially argued that the
alleged offer
was on the same terms as the expired contract.But that is not stated
in the alleged offer, and the argument is
not supported by the
evidence. Next I was referred to a pro forma contract between the
first respondent and the second applicant
attached to the founding
affidavit,as being the terms agreed upon. This contract, which Nel
says he prepared and sent to Van
der Linde in February 2012, states
inter alia that the contract period is 1 March 2012 to 28 February
2013; and that the first
respondent would pay a monthly management
fee of R50 000.00 for the services. MrSmit rightly conceded
that the pro forma
contract was destructive of the argument that the
alleged offer was on the same terms as the expired contract –
the monthly
fee under the latter was R40 000.00.
Moreover, on the
applicants’ own version, the alleged offer contains no terms
upon which the first respondent was willing
to contract. That much
is clear not only from the alleged offer itself, but also from an
e-mail which Nel sent to Van der Linde
on the very same day that he
purportedly accepted the alleged offer. Nel said,
“
Vir die kontrak se
volledigheidwilek net graagmeerduidelikheidoor die volgendehê:
Datum van kontrak – 1
Februarie 2012 tot 28 Februarie 2013.
Kontrakprys – jyweet
self dat die R40 000 vir my en Graham se diensteʼn absolute
bargain was - watsoujy as billikbeskousonderom
die bank tebreek?
Ekmoetdaremgenoegkryomteoorleef en ekbetaal reeds vir Graham
R20 000.00 per maandwatnouniejouprobleem
is nie, maar
nogtanskosdit my kwaai.
Soosjygesien het
salonsookbaie extra geld inbringdeuradvertensies en borgskappevir
die klub.
Prestasie bonus –
kwalifiseeronsookvir ʼn prestasie bonusof is dit net ʼn
vasgesteldekontrakprys?
”
Nel seeks to
explain away this e-mail in reply by stating that he merely enquired
about certain aspects before sending Van der
Linde the proposed
contract and that the enquiry was merely to find out whether he too
would receive additional benefits as other
staff members of the
first respondent. This explanation however does not bear scrutiny.
First, it is quite clear from Nel’s
e-mail that there was no
agreement about the contract price or the tenure of the alleged
contract, which according to Nel was
13 months. Second, that there
was no agreement, is underscored by Van der Linde’sreply on
the same day - “
Gee my kansomditgoeddeurte dink en
tebespreek met die raad en danterugkomnajou toe”
.
It is quite clear
from the founding papers that Nel’s proposals in his e-mail of
2 February 2012 were not placed before
or discussed with the Board.
On the contrary, as already stated, the Board terminated the
month-to-monthcontract on 25 July 2012.
But more fundamentally, the
founding papers show that there was no agreement on an
essentialia
of the alleged contract – the price at which the services
would be rendered. And of course, if the alleged offer contained
this term, it would not have been necessary for Nel to send the
e-mail enquiring about the contract price in the first place.
In my respectful
view, and having regard only to the founding affidavit, the
applicants failed to establish a
prima facie
cause of action
against the first respondent. On this basis alone, the Anton
Pillerorder falls to be set aside.
But there is a
further difficulty in the way of the applicants. It is thatthe order
also falls to be set aside in the light of
the respondents’
evidence in rebuttal. The question whether the applicants have
discharged the
onus
of proving a
prima
facie
case
must be determined with reference to that evidence, as there are
real disputes of fact which arise on the papers.
10
This Court has held
that the usual evidential criteria should be applied in an opposed
application for an Anton Piller order.
11
Consequentlywhere,
as here, disputes of fact have arisen on the affidavits, a final
order may be granted if the facts averred
in the applicants’
affidavits which have been admitted by the respondents, together
with the facts alleged by the respondents,
justify such an order,
unless the respondents’ allegations or denials are so
far-fetched or clearly untenable that they
may be rejected merely on
the papers.
12
Applying the
Plascon-Evans
rule, the applicants are not entitled to a final
order for the preservation of evidence, pending the finalisation of
their action.
The respondents’ evidence is that the Board did
not take any decision to employ Nel on a fixed term contract for 12
months,
and thus did not make the alleged offer. In a report to the
AGM of the first respondent in December 2011, Ms Shelley
Mackay-Davidson
(“
Mackay-Davidson
”), the
Chairperson of the Board and a practising attorney, stated that Nel
was contracted to manage the golf operations
until 31 January 2012,
after which that service would be put out to tender. This is
confirmed in the minutes of the AGM.Mr James
R Julyan (“
Julyan
”),
a director of the first respondent, in an affidavit states that no
decision was taken at the Board’s meeting held
on 1 February
2012 to appoint either of the applicants on a fixed term contract of
12months. In addition, Ms Juliette Thirsk,
also apractising
attorney,who took the minutes at the meeting of1 February 2012,
states that they were in draft form and that
there were a number of
aspects recorded in the draft minutes which were not in accordance
with what was decided at the meeting.
The alleged offer was one of
them. Mackay-Davidsonthen amended the minutes to record what had
been decided, and on 22 February
2012 sent a revised draft thereof
to all Board members by e-mail. The revised draft, which does not
contain the alleged offer,
was subsequently accepted by the Board as
being true and correct.
Apart from this,
there are other facts which show that at the relevant times, Nel was
aware the Board did not take a decision
to appoint him on a fixed
term contract. Nel was a member of the first respondent’s Golf
Subcommittee. He was present at
its meeting held on 23 February
2012. The minutes of that meeting record inter alia that the
Subcommittee wished to resolve the
matter regarding tenders for the
management of the golf course in accordance with the decision of the
AGM; that the Board was
waiting for recommendations from the
Subcommittee; that Nel’s contract would end on 29 February
2012; and that Julyan recommended
that the decision relating to
Nel’s position be taken by the Board. In the replying
affidavit Nel does not dispute the
correctness of the minutes of the
Golf Subcommittee’s meeting of 23 February 2012. He says in
reply that Julyan was against
his appointment but that Van der Linde
and the rest of the Subcommittee were in favour of it; and that Mr.
Tannah Harris, a member
of the Subcommittee was asked, in his words,
“
to
… send this
recommendation
to the Board
”
.
Then he says, “
Upon
conclusion of the Golf Committee
(sic)
on
the 23
rd
of February 2012
the second respondent sent me the Minutes of the Board, indicating
my appointment
”
.
13
Nel however misses
the point. If a recommendation for his appointment by the Golf
Subcommittee as alleged was sent to the Board
only on 23 February
2012, how could the Board have taken a decision to appoint Nel at
its meeting on 2 February 2012? And why
did he, or Van der Linde,who
were both present at the meeting of 23 February 2012, simply not
inform the Golf Subcommittee that
the Board had already taken a
decision to appoint Nel at its meeting of 1 February 2012? In my
opinion, the answer is not far
to seek. The Board took no such
decision.
For these reasons
also, the Anton Piller order should be set aside.
In addition, the
applicants have not satisfied the requirement that the apprehension
that the documents or evidence may be destroyed
or spirited away,
must be “
real
and well-founded
”
.
14
The
fear of destruction must not be flimsy.
15
MrSmit
fairly conceded that the high-water mark of their case in this
regard is a bald allegation in the founding affidavit that
the
applicant believes that, “
the
First Respondent and its employees will definitely take steps to
destroy these documents and to delete them from their computers
”
.
However, there is no reason or any basis set out for this belief.
Nel’s alleged
belief is completely unfounded essentially for two reasons. The
first is that the evidence – in the
founding papers no less -
points the other way.The second is that Nel could not seriously have
entertained a belief that three
practising attorneys, officers of
the Court, would conspire to destroy and delete documents from their
computers; and deliberately
flout the rules relating to discovery.
And this after they had completely answered Nel’squeries as to
whether the Board
had taken the alleged decision on 1 February 2102
to appoint him for 12 months; and provided him with documents in
support of
the first respondent’s position.
On his own showing,
as long ago as 31 March 2012 Nel was aware that the contract for the
management of the golf course was on
a month-to-month basis until
the board appointed a new golf director, when Van der Linde told him
this. On 11 May 2012 Mackay-Davidson
sent an e-mail to Nel in which
she advised him that at no stage did the Board agree to extend his
appointment until the end of
February 2013, as it was obliged to
follow the directive of the AGM in December 2011 to call for tenders
for the service; and
that his contract was on a month-to-month basis
terminable by either party on 30 days’ notice. The same day
i.e. 11 May
2012, the applicants’ attorney replied by e-mail.
He informed Mackay-Davidson that Nel had indeed been appointed on a
fixed
term contract for 12 months until the end of February 2013;
that this had been confirmed orally; and that MrHerbieOosthuizen
(“
Oosthuizen
”), also a practising attorney, had
been appointed to finalisea written agreement of employment.
Mackay-Davidson was asked
to comment on these facts, after which
Nel’s attorney would take instructions.
Mackay-Davidson
responded by letter dated 28 May 2012 in which she said that the
alleged decision appeared in a preliminary draft
of the minutes. She
attached a copy of the minutes of the meeting of 1 February 2012, as
approved by the board at the meeting
of 9 May 2012, in which the
alleged offer is not recorded. She went on to say that Nel’s
version of the conversation with
Van der Linde in which he had
supposedly been informed of the alleged offer, was incorrect; and
that Van der Linde had informed
Nel that the contract would continue
on a month-to-month basis at the end of January 2012,until a
permanent golf manager was
appointed; and that that Oosthuizen had
been instructed by the Board to draft a service level agreement to
govern the temporary
relationship between Nel and the first
respondent.
What all of this
shows, is that prior to the launching of this application, Nel’s
conduct is inconsistent with any belief
that the respondents would
destroy or delete the documents from their computers. More
specifically, after the first respondent
had given him the relevant
information at the end of May 2012, he could not have believed that
the documents would be destroyed.
This would explain why he did
nothingbetween May and September 2012, when this application was
launched.
The applicant did
not make out a case in the founding papers that the respondents
would hide, destroy or spirit away documents
relating to decisions
taken by the Board. It follows, in my respectful view, that the
Anton Piller order should not have been
granted.
In view of the
conclusion to which I have come, it is unnecessary to consider in
any detail the question whether the documents
obtained pursuant to
the Anton Piller order constitute vital evidence in support of the
applicants’ cause of action. It
suffices to say that the
applicants did not meet this requirement either. The evidence is not
of great importance to their case,
16
inasmuch
as there is a paper trail in relation to what was decided regarding
the management of the golf course and clubhouse at
Pinnacle point,
before and after the expired contract came to an end.
What remains is the
question of costs. In
Universal
City Studios
,
17
Corbett JA said,
“
Procedurally the
typical
Anton
Piller
order is very
unusual in that it is normally sought
ex
parte
without notice to
the other party and
in
camera
. Moreover,
aspects of the order immediately affect in an adverse manner the
rights to the other party without him having been heard
in opposition
to the order. In addition, there is abundant evidence that in the
past
Anton Piller
orders have been grossly
abused by those in whose favour they had been granted at the expense
of those against whom they have been
granted.”
18
An application for
an interdict
ex
parte
and
in camera, should be granted in very clear cases where justice
cannot be served otherwise than by depriving the respondent
of his
right to be heard. In the nature of things such cases are
exceptional.
19
This, plainly, is
not an exceptional case, and constitutes an abuse of the Anton
Piller procedure. The application was nowhere
near urgent –
the applicants waited some six months before approaching the Court.
They were not justified in doing so
ex
parte
.
Their enquiries to the respondents regarding the alleged offer and
its purported repudiation were answered; and documents were
furnished to them in support of the respondents’
position.There was no basis at all to believe that the respondents
would
destroy documents or delete them from their computers, for the
reasons already advanced. There is no reason why the applicants
could not have made use of ordinary discovery procedures to obtain
access to the documents required to substantiate their alleged
cause
of action.
20
In these
circumstances, I am satisfied that an order that the applicants
should bear the respondents’ costs on the attorney
and client
scale is justified.
The order I make is
as follows:
The Anton Piller
order and all the orders granted pursuant theretoin the order dated
14 September 2012, are set aside.
The rule
nisi
in paragraph 1 of the order dated 14 September 2012 is discharged.
The Sheriff, Mossel
Bay, is directed to return to the first respondent by no later than
Friday 31 May 2013, the documents obtained
at its premises pursuant
to the execution of the order dated 14 September 2012 and listed in
the Sheriff’s inventory dated
17 September 2012.
The applicants are
ordered to pay the costs of this application jointly and severally,
on theattorney and client scale.
SCHIPPERS J
1
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977(3) SA 534(A) at 550
in fin; Hall and Another v
Heynsand Others
1991 (1) SA 381
(C) at 385D-E
.
2
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam and
Another; Mapanga v Officer Commanding, South African Police
Murder
and Robbery Unit, Pietermaritzberg,and Others
1995
(4) SA 1
(A) at 15 F-I.
3
Shoba
n 2 at 16B-C.
4
Emphasis
supplied.
5
Joubert
et
al
(eds)
The Law of South Africa
(2
nd
ed
2010)Vol 5 Part 1 p 360 para 370.
6
LAWSA
o
p cit
p
360 para 371;
Joubert
v Enslin
1910 AD 6
at
23-24.
7
See
LAWSA
op cit
p
360 para 371 and the authorities there collected.
8
LAWSA
op cit
p 364 para 376;
Burroughs Machines Ltd v Chenille
Corporation of SA (Pty) Ltd
1964 (1) SA 669
(W) at 670H,
affirmed in
Clements v Simpson
1971 (3) SA 1
(A) at 7E-F.
9
Pitout
v North Cape Livestock Co-operative Ltd
1977
(4) SA 842
(A) at 850C-851D.
10
Kalil
v Decotex (Pty) Ltd and Another
1988 (1) SA 943
(A) at 976G-H;
11
Sun
World International Inc v Unifruco Ltd
1998 (3) SA 151
(C) at
162H-163B.
12
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634H-635C.
13
Emphasis
supplied.
14
Universal
City Studios Inc and Others v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2)
SA 734
(A) at 755B;
Shoba
n 1 at 15I.
15
Hall
n 1 at 390D-H.
16
Shoba
note 1 at 15J.
17
Note
fn 13.
18
Universal
City Studios
note fn 16 at 752B-C.
19
Knox
D’arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA
348
(A) at 379H-I.
20
Rath
v Rees
2007 (1) SA 99
(C) para 37.