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[2014] ZAWCHC 179
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Web Call (Pty) Ltd v Botha and Another (A 50/2014) [2014] ZAWCHC 179 (5 December 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A 50/2014
DATE:
05 DECEMBER 2014
In
the matter between:
WEB
CALL (PTY)
LTD
........................................................................
Appellant
And
STEPHAN
ANDRÉ
BOTHA
....................................................
First
Respondent
OCULUSIP
(PTY)
LTD
........................................................
Second
Respondent
Before:
The Hon. Mr Justice Yekiso
The
Hon. Mr Justice Binns-Ward
The
Hon. Mr Justice Dolamo
Date
of hearing: 28 November 2014
Date
of judgment: 5 December 2014
JUDGMENT
BINNS-WARD
J:
[1]
The
appellant has come on appeal against the judgment of Savage AJ on the
return date of an ‘Anton Piller’ application
[1]
setting aside the search and seizure order obtained earlier by the
appellant on application to a duty judge in chambers without
notice
to the respondents. Leave to appeal to the Full Court was
granted by the Supreme Court of Appeal.
[2]
The respondents had contended for the setting
aside of the order on several grounds in the court a quo. The
learned acting
judge upheld their contentions on two of those
grounds, finding it unnecessary in the circumstances to treat of the
others.
The judge did, however, indicate, albeit without
discussion, when she subsequently gave judgment refusing leave to
appeal, that
at least some of the other grounds argued before her
could have led her to the same conclusion. The grounds upheld
by the
judge a quo were that the applicant had acted in breach of its
duty of full and frank disclosure when making the application
ex
parte
and that it had failed to show
that the extraordinary remedy of search and seizure was sufficiently
necessary for the purpose of
enabling it to effectively prosecute the
litigation that it held out it wished to pursue against the
respondents for breach of
a restraint of trade agreement and unlawful
competition.
[3]
The factual background to the case is a familiar
one in the context of search and seizure applications. It
concerned the applicant,
as a former employer, intent on suing the
first respondent, its erstwhile employee, and the second respondent,
a business in which
the first respondent is now engaged, for damages
arising out of alleged unlawful competition. The unlawful
competition is
alleged to be founded on the use of the applicant’s
confidential information, said to have been filched by the first
respondent
when he left the applicant’s employ. By the
return day of the order, it had become common ground that the first
respondent
had left the appellant’s employment taking with him
the information related to his business dealings when he was the
appellant’s
manager: indirect sales, which had been saved on
his laptop computer in the ordinary course of his work. The
appellant’s
managing director had alleged in the founding
papers that the information had been copied and removed illicitly.
It was eventually
undisputed, however, that the first respondent had
been permitted to take his work computer with him when he left and
that, to
the knowledge of the responsible officer at the appellant,
it had contained the appellant’s aforementioned business
information.
[4]
It
was alleged in the appellant’s replying papers that the first
respondent’s computer had not been reformatted at the
time as
the responsible officer would have wished to have done. This
was because the first respondent had protested that
formatting the
disk would result in the deletion of his personal information that
was also stored on the computer. It was
also alleged in reply
that the first respondent had undertaken to delete the appellant’s
information. This had not
happened. Instead, the
information had been kept in a folder which the first respondent had
named ‘Legacy’.
The first respondent alleged that
the name had been chosen because in computer jargon ‘legacy’
was a word used to describe
old or redundant information.
[2]
The first respondent had stated in his answering affidavit that he
had not been required to delete the information.
It also became
common ground that the content on the computer’s hard drive had
been backed up by the appellant on the day
of the first respondent’s
departure from its offices and that the allegation in the founding
papers to the effect that he
had deliberately avoided backing up his
computer for some months before he left was unfounded.
[5]
It would appear from the appellant’s
replying papers that the deponent to the appellant’s founding
affidavit had been
ignorant of some of the material facts when he
made the affidavit. His ignorance resulted in the
aforementioned material
misrepresentations, which suggested an
illicit taking of the information by the first respondent when he
left the appellant’s
employ. It may be accepted for
present purposes that the deponent to the founding affidavit did not
act perjuriously in making
the aforementioned false averments, but
that does not excuse the appellant from the consequences of having
put up a materially
misleading case. It was incumbent upon
someone in the position of the appellant’s managing director to
have taken the
greatest care to get the facts right in making an
affidavit in an
ex parte
application for a search and seizure order.
The policy of the courts to insist on the highest standard of care
and circumspection
in applications for search and seizure orders,
which are virtually invariably brought without notice to the affected
respondent
party, is because of the extremely invasive effect of such
orders and the attendant infringement of the affected party’s
fundamental right to privacy and dignity.
[6]
A
further material shortcoming in the appellant’s founding papers
was the representation therein that the volume of business
transacted
by the appellant with Nashua Communications had dropped off
considerably after the first respondent had left its employment.
The inference that the appellant sought to persuade the court to draw
from the presented facts was that the first respondent had
poached
the business for his new venture with the second respondent.
The deponent to the founding affidavit omitted to disclose,
however,
that the demonstrated drop-off in trade followed a directive by the
relevant group of companies to its staff to cease
using outside
service providers like the appellant and to internalise the provision
of VoIP
[3]
services. The
omission resulted in a material misrepresentation of relevant facts
in the circumstances.
[7]
The
flaws in the founding papers are characterisable as material because
they are such that had the duty judge been apprised of
the true or
full facts, he might well have refused the application, or granted
relief in differently formulated terms. A
strict policy is
adopted in the treatment of material misrepresentations or
non-disclosures on the return days of orders taken
without
notice.
[4]
The approach is
considered appropriate as an incentive to applicants in such matters
to ensure that the court is properly
equipped, on the basis of full
and correct information, to afford the protection to which
respondents against whom relief is granted
without a hearing are
entitled. The granting of relief against any party without
first giving them an audience (‘
audi
alteram partem’
)
represents a fundamental departure from the natural rules of
justice. It is justifiable only in exceptional circumstances.
It has been authoritatively confirmed that exceptional relief such as
search and seizure orders or freezing (anti-dissipation)
orders in
applications made without notice to the affected party should be
subject to stringent control and exacting standards;
cf.
Knox
D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(A) ([1996]
3 All SA 669)
, at 379E-380B (SALR).
[8]
For these reasons I consider that the court a quo
was justified, on account of the material non-disclosure or
misrepresentation
in the appellant’s founding papers, in
revoking the Anton Piller order on the return day; cf.
Hall
v Heyns & Others
1991 (1) SA 381
(C), at 397B. That conclusion would, by itself, be enough to
result in the dismissal of the appeal. But there were
also
other aspects of the matter that support that result.
[9]
By reason of their infringing effect on the rights
to privacy and dignity of the affected respondent party, Anton Piller
orders
are constitutionally compatible, and thus lawful, only to the
extent that they comply with law of general application that passes
muster in terms of s 36 of the Constitution; see
Mathias
International Ltd and Another v Baillache and Others
[2010] ZAWCHC 68
(8 March 2010), at para 11-18.
In this country, as was originally the case in England, the
applicable law is judge-made.
It has been developed in the
exercise by the superior courts of their inherent jurisdiction to
regulate their own procedures and
develop the common law; cf.
Universal City Studios Inc and Others v
Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) at 754E-F and
Shoba v Officer
Commanding, Temporary Police Camp, Wagendrift Dam, Maphanga v Officer
Commanding, SA Police Murder & Robbery
Unit, Pietermaritzburg
1995 (4) SA 1
(A) ([1995]
2 All SA 300)
, at 8G
(SALR). In the result it is beyond the power of a judge to
purport to make such an order in circumstances that do
not comply
with the established requirements for the relief and where the well
established protections for the affected respondent
party are not
built into the provisions of the order; see e.g.
Memory
Institute SA CC t/a SA Memory Institute v Hansen and others
2004 (2) SA 630
(SCA) at para 2-3.
[10]
The requirements that must be satisfied to make
out a competent application for an Anton Piller order were confirmed
in
Shoba
supra,
at 15H-I (SALR) as follows:
‘…
what
an applicant for such an order, obtained
in
camera
and
without notice to the respondent, must
prima
facie
establish,
is the following:
(1)
That he, the applicant, has a cause of action against the 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.’
[11]
Counsel for the respondents argued that the
appellant had not satisfied any of the requirements. They
pointed to the fact
that the documentation attached to the
appellant’s supporting affidavits suggested that the customer
connections and business
transactions relied upon by the appellant
were in fact those of Mobifin (Pty) Ltd, the appellant’s
holding company, rather
than those of the appellant. It was
contended that any claim based on unfair competition would vest in
Mobifin, not the applicant.
In reply, the appellant alleged
that it conducted business on a profit sharing basis with Mobifin.
The position in this connection
is not altogether clear on the
papers. It is apparent that both companies traded using the
same trade name, Web Call and
that the first respondent in the course
of his employment by the appellant was engaged in work that
contributed to the conclusion
of contracts by customers with
Mobifin. I am willing for the purposes of this judgment to
assume, without so holding, that
the appellant did have standing to
bring the application. All it was required to do to satisfy the
first of the aforementioned
requirements was to demonstrate the
existence of a
prima facie
case in the intended action. It is in respect of
the second and third requirements that I consider that the
appellant’s application
was non-compliant to a fatal degree.
[12]
The appellant sought, and was provisionally
granted, the right to obtain the search and seizure of the following
documents (I quote
from the schedule to the appellant’s notice
of motion):
1.
All and any e-mails, letters, postings (i.e. the entering of
electronic data messages), quotations, SMSs, facsimiles or other
electronic communications between the First Respondent and any
clients, agents or suppliers of the Applicant, who were
clients/agents/supplies
at the time that the First Respondent was
employed by the Applicant, and which are in the possession of, or
under the control of,
or were created by either or both First and
Second Respondent, and more specifically in respect of the following
businesses which
trade, as, and are commonly known as:
1.1
Itec Cape Town;
1.2
Strategic IT;
1.3
Maxtel;
1.4
Minet;
1.5
Allcom; and
1.6
Nashua.
2.
All and any invoices, way bills, business
proposals, receipts, electronic funds transfers, delivery notes,
shipping documents, quotations
and/or other similar documentation
recording and reflecting the transaction of business (or attempts to
do so) between the First
and Second Respondent and any clients and/or
agents of the Applicant and more specifically the following
businesses which trade
as, and are commonly known as:
2.1
Itec Cape Town;
2.2
Strategic IT;
2.3
Maxtel;
2.4
Minet;
2.5
Allcom; and
2.6
Nashua.
3.
Any documents in hard copy or electronic form
which are proprietary to Applicant and either used or likely to be
used by either
or both First and Second Respondent to complete with
the Applicant.
4.
All and any contracts concluded between the First
and/or Second Respondent and the Applicant’s suppliers and/or
customers
and/or Applicant’s agents.
5.
The Excel spreadsheet described in the notice of
motion as a “savings calculator”.
6.
Any of the above stored in cloud-based storage(s).
[13]
The
documentation identified in paragraphs 1 to 4 of the schedule is
generically defined; nothing is specifically described.
The
formulation of those paragraphs conjures the image of a trawl net
rather than a laser pointer. Any search conducted in
accordance
with their all-encompassing breadth would bear the hallmarks of a
search for evidence to make out a case, rather than
one for specific
documents that the appellant had identified it would need for an
already made out case. In
Mathias
International
supra,
at para 20, the point was made that ‘(t)he
impermissibility of the use of the [Anton Piller] procedure to enable
searches to be undertaken to look for evidence to identify or found a
case, as distinct from the preservation of evidence for use
in an
already identified claim is fundamental. The strict limitation
of the use of the procedure to the preservation of evidence,
as
distinct from, say, a search for evidence (the so-called fishing
expedition), is a feature that is essential to the legality
of the
procedure established with regard to the requirements of s 36(1)
of the Constitution.
An
application for authority to search for evidence in the nature of a
fishing expedition should flounder at the first hurdle for
want of
compliance with the specificity requirement mentioned as the second
of the three essential requirements for the grant of
an Anton Piller
order in
Shoba
,
quoted … above.
[5]
The
specificity requirement is a material factor in accepting that the
limitation of basic rights inherent in the Anton Piller procedure
is
reasonable and justifiable as required by s 36(1) of the
Constitution’.
[14]
There was a material non-compliance with the
specificity requirement in the current matter. The order
obtained was thus non-compliant
with the applicable law and on that
account too fell to be set aside on the return date.
[15]
There was also no demonstrated necessity for the
use of a search and seizure order to obtain the evidence that might
be provided
by the documentation described in paragraphs 1-4 of the
schedule. It could all have been obtained by means of discovery
by
the respondents and/or by subpoenaing the appellant’s
clients or agents
duces tecum
.
[16]
An application for the delivery up of the ‘savings
calculator’ mentioned in paragraph 5 of the schedule would
have
been a more appropriate remedy than the extreme measure of an
Anton Piller order. It was known that the first respondent left the
appellant’s employment with the spread sheet on his computer.
It appears doubtful that the calculator was in fact the property
of
the appellant. It had been developed by one Keith Mould at the
instance of Mobifin (Pty) Ltd. But even assuming
for present
purposes that the appellant could establish an entitlement to
vindicate it, it needs to be stressed that t
he
sole
purpose
of the Anton Piller procedure is the preservation of evidence; it is
not a substitute for possessory or proprietary claims
(
Memory
Institute
supra
,
at para. 3).
[17]
Paragraph 6 of the schedule is nothing more than a
catch-all of any material falling under paragraphs 1–5 thereof
that might
be stored off computer and be accessible remotely.
[18]
The appellant’s counsel argued that the
appellant’s clients and agents had built up close personal
relationships with
the first respondent and were sympathetic to the
respondents’ position. He contended that their
relationships detracted
from the likely effectiveness of the
aforementioned conventional procedural remedies available in terms of
the rules of court.
No such allegations had been made in the
founding papers. It would not have been sufficient to allege a
mere suspicion that
a party would not comply with a subpoena.
Paranoia or vaguely postulated conspiracy theories do not afford
justification
for resort to extreme procedural remedies; a ‘real
and well-founded apprehension’ that the evidence to which the
intended
search and seizure operation is directed will be destroyed
or concealed unless the remedy is afforded is what any applicant for
such relief must establish. Were it otherwise, the exceptional
remedy of a search and seizure process would become a commonplace,
rather than an exceptional, procedure in the preparation of an action
for hearing. The appellant’s counsel’s
submissions
in this connection call to mind the selected extracts from the
judgment of Hoffmann J in
Lock International plc v
Beswick and Others
[1989] 1 WLR 1268
(Ch) at
1280-1283 that were cited quite recently by Tugendhat J in
CBS
Butler Ltd v Brown & Ors
[2013]
EWHC 3944
(QB) (16 December 2013), at para 32:
Some
employers seem to regard competition from former employees as
presumptive evidence of dishonesty. Many have great difficulty
in
understanding the distinction between genuine trade secrets and skill
and knowledge which the employee may take away with him.
Even
in cases in which the plaintiff has strong evidence that an employee
has taken what is undoubtedly specific confidential information,
such
as a list of customers, the court must employ a graduated response.
To borrow a useful concept from the jurisprudence of the
European
Community, there must be proportionality between the perceived threat
to the plaintiff's rights and the remedy granted.
The fact that there
is overwhelming evidence that the defendant has behaved wrongfully in
his commercial relationships does not
necessarily justify an Anton
Piller order. People whose commercial morality allows them to take a
list of the customers with whom
they were in contact while employed
will not necessarily disobey an order of the court requiring them to
deliver it up. Not everyone
who is misusing confidential information
will destroy documents in the face of a court order requiring him to
preserve them.
In many cases it will
therefore be sufficient to make an order for delivery up of the
plaintiff's documents to his solicitor or,
in cases in which the
documents belong to the defendant but may provide evidence against
him, an order that he preserve the documents
pending further order,
or allow the plaintiff's solicitor to make copies. The more intrusive
orders allowing searches of premises
or vehicles require a careful
balancing of, on the one hand, the plaintiff's right to recover his
property or to preserve important
evidence against, on the other
hand, violation of the privacy of a defendant who has had no
opportunity to put his side of the
case. It is not merely that the
defendant may be innocent. The making of an intrusive order
ex
parte
even against a guilty defendant
is contrary to normal principles of justice and can only be done when
there is a paramount need
to prevent a denial of justice to the
plaintiff. The absolute extremity of the court's powers is to permit
a search of a defendant's
dwelling house, with the humiliation and
family distress which that frequently involves….
[19]
Mr
Justice Hoffmann, a judge with considerable commercial experience,
also noted in
Lock
International
that
he had ‘
learned
to approach such applications with a certain initial scepticism’.
His observations quoted in the preceding paragraph
stress the need
for proportionality in matters of this nature. The learned
judge’s sentiments in this respect were
echoed in the local
context by the Chief Justice in
Shoba
supra,
at p.16B-C (SALR);
[6]
see
also
Knox
D’Arcy Ltd
supra
at 379J-380B
[7]
. The
exercise includes considering why conventional procedures would not
suffice. An approach entailing a ‘certain
initial
scepticism’ can be useful in that context. In the current
case the appellant failed to establish that it could
not obtain what
it needed by way of the ordinary, less invasive, civil procedures.
In
Krygkor
Pensioenfonds v Smith
1993
(3) SA 459 (A)
[8]
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.’
[9]
[20]
In my judgment the duty judge who granted the
order appears to have overlooked that the appellant could obtain the
information it
contended it needed for its case against the
respondents by conventional procedures. In the circumstances no
or inadequate
consideration was given to the proportionality
requirement when the order was made. This constituted a
material misdirection
and resulted in the judge purporting to
exercise a power that was beyond his remit because it was
incompatible with the applicable
law and thus unconstitutional.
The court a quo essentially found as much.
[21]
It is not necessary in determining the outcome of
this appeal to do so, but I nevertheless consider it appropriate also
to comment
on the execution of the order. The order allowed for
the copying by an IT technician and removal by the sheriff of copies
of the documentation falling within the general description set out
in the several paragraphs of the schedule quoted above.
It
transpired that the task of isolating identified documents for
copying purposes would be very time consuming. The technician
apparently indicated that a number of days would be required.
He suggested that it would be more efficient to make a mirror
image
of the entire content of the electronic devices that he was asked to
search. The supervising attorney agreed to allow
this and the
mirror images were consequently made. A deviation of this
nature from the terms of the order obtained from the
court was most
irregular. It does not matter that the respondents and the
affected third parties whose cellular telephone
data was copied did
not object. The invasive effect of search and seizure orders
with their attendant infringement of the
affected parties’
fundamental rights is such that it is of importance that the orders
must be executed strictly in accordance
with their tenor. It is
the role of the supervising attorney to ensure that that is done.
The supervising attorney
has no authority to vary the order or of his
own accord to permit any form of substituted execution thereof.
If the form
of the order granted proved to be impractical to execute,
the court should have been approached to review the relevant terms
thereof.
In the current case a review of the order might, and,
in my view, should, have resulted in it being recalled at an early
stage.
[22]
The appeal is therefore dismissed with costs,
including the fees of two counsel.
A.G.
BINNS-WARD
Judge
of the High Court
YEKISO
et
DOLAMO JJ:
We concur.
N.J.
YEKISO
Judge
of the High Court
M.D.
DOLAMO
Judge
of the High Court
Date
of hearing: 28 November 2014
Date
of judgment: 5 December 2014
Applicant’s
counsel: A.D. Maher
Applicant’s
attorneys: E. Groenewald & Associates
Respondent’s
counsel: R.D. McClarty SC
C.L.
Reilly
Respondent’s
attorneys: Reillys
[1]
The label derives
from the judgment in
Anton
Piller KG v Manufacturing Processes Ltd & Ors
.
[1975] EWCA Civ 12
,
[1976] 1 All ER 779
(CA),
[1976] Ch 55.
An
Anton Piller order is directed at securing
the
preservation of evidence in proceedings already instituted or to be
instituted by the applicant; see e.g.
Van
Niekerk and Another v Van Niekerk and Another
2008
(1) SA 76
(SCA) at para 10.
[2]
The
Oxford
Dictionary of English
defines
the word as an adjective in computing use ‘
denoting
or relating to software or hardware that has been superseded but is
difficult to replace because of its wide use
’
.
[3]
Voice over Internet
Protocol.
[4]
Compare,
for example,
Schlesinger
v Schlesinger
1979
(4) SA 342
(W) at 349 at 348-350,
Phillips
and Others v National Director of Public Prosecutions
2003
(6) SA 447
(SCA)
(2003 (2) SACR 410
;
[2003] 4 All SA 16)
at para 29
and
Hassan
and Another v Berrange NO
2012
(6) SA 329
(SCA) at para 14.
[5]
In
The
MV "Urgup": The Owners of the MV "Urgup" v
Western Bulk Carriers (Australia) (Pty) Ltd
1999
(3) SA 500
(C)
at 508 I, Thring J expressed, aptly in my respectful view,
albeit
obiter
,
the requirement thus:
The
object of an
Anton
Piller
order
is not to sanction a search for evidence which may or may not exist
and which may or may not go to found a cause of action,
but to
preserve specific evidence which is known to exist, which
prima
facie
constitutes
vital substantiation of a known cause of action, and whose
concealment, loss or destruction is feared by the applicant
for the
order
.’
[6]
Corbett
CJ remarked ‘
The
Court to which application is made for … 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
established with reference to the matters listed (1), (2) and (3)
above
[i.e.
the three requirements described in para [10]
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
’
.
[7]
E.M.
Grosskopf
JA, dealing with an anti-dissipation application brought
ex
parte
,
cited the following
dicta
of
Stegmann J in the court of first instance in that matter with
approval: ‘
The
exercise of such powers must be attended with due caution; with all
practical safeguards against abuse; and with a careful
attempt to
visualise the ways in which the order may prove to be needlessly
oppressive to the intended defendant. Consideration
must also be
given to the manner in which the order may interfere with the rights
and obligations of third parties, such as banks
or other debtors of
the intended defendant, or other custodians of the intended
defendant's assets. Both the oppressiveness of
the order to the
intended defendant and its interference with the rights and
obligations of third parties must be kept to the
minimum. . . .
’
.
[8]
The
relevant issue for present purposes in
Krygkor
was
the question of whether a superior court in the exercise of its
inherent jurisdiction could order a pension fund to provide
information to a member’s former wife when no provision for
such a remedy existed in terms of the ordinary rules of procedure.
The court of first instance had granted the remedy. On appeal
it was held that the remedy should not have been granted
because the
former wife could have achieved what she needed to by appropriate
use of the available conventional procedures.
E.M. Grosskopf
JA dealt with the matter as follows at 469 in
fine
-
470G:
Mev
Smith het 'n reg tot 'n helfte van die pensioengeld gehad. Hierdie
reg kon sy by wyse van aksie of aansoek teen mnr Smith
afdwing.
Watter prosedure sy ook al gevolg het, sou sy deur blootlegging kon
vasstel watter bedrae mnr Smith ontvang het (sien
Reël 35 en
veral Reël 35(13) van die Eenvormige Hofreëls). Verder sou
sy enige ongeprivilegieërde inligting
van die Pensioenfonds kon
bekom deur middel van 'n getuiedagvaarding selfs, in ’n
gepaste geval, in mosie-verrigtinge.
Sien Harms
Civil Procedure
in the Supreme Court
para G27. Vir 'n gewone Hofproses het sy
dus geen buitengewone regshulp nodig gehad nie.
Sy
het egter om verstaanbare redes besluit om 'n dringende aansoek aan
te vra. Haar eerste bede was om 'n bevel wat mnr Smith
gelas om die
helfte van die bedrag wat hy van die Pensioenfonds ontvang het, aan
haar te lewer. As sy bang was dat hy haar sou
bedrieg en minagting
van die Hof sou pleeg deur ’n bedrag oor te betaal wat minder
as die helfte is, sou sy ook in hierdie
aansoek die Hof kon gevra
het om terselfdertyd blootlegging te gelas ingevolge Hofreël
35(13). Dit sou haar in staat gestel
het om insae te kry in alle
relevante dokumente wat in sy besit was, soos byvoorbeeld
korrespondensie met die Pensioenfonds,
bankstate, en dies meer. Geen
rede blyk uit die stukke om te vermoed dat mnr Smith ’n
meinedige blootleggingsverklaring
sou geliasseer het nie. Ook in die
dringende aansoek het sy dus myns insiens nie buitengewone regshulp
nodig gehad nie. Veral
was dit nie nodig om die Pensioenfonds, ’n
buitestaander, in hierdie stadium in te trek in die geskil tussen
haar en haar
voormalige man nie. Die Pensioenfonds was nie die
enigste wat die inligting gehad het nie. Mnr Smith het dit ook
gehad, en van
hom kon sy dit kry sonder om af te wyk van die erkende
praktykreëls, behalwe miskien insoverre dit nodig mag gewees
het
om hulle aan te pas weens die dringendheid van die saak. En as
dit uiteindelik onmoontlik geblyk het om reg te laat geskied sonder
die inligting van die Pensioenfonds, sou die Hof kon gelas het dat
'n gepaste amptenaar van die fonds viva voce getuienis aflê.
Sien Harms (op cit).
Om
op te som: as ek veronderstel dat die Hof wel die inherente
bevoegdheid het om bekendmaking van hierdie soort inligting deur
'n
buitestaander tot ’n geskil te gelas, meen ek nogtans nie dat
die Hof dit in hierdie geval behoort te gedoen het nie.
[9]
Shoba
supra,
at 17 I- 18B (SALR).