IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION)

7247/2006

BOVIDAE INVESTMENTS (PTY) LTD trading as NASHUA WESTERN CAPE Applicant vs JAN HENDRIK NEL First Respondent KENNETH PAUL ADDISON Second Respondent AQUILINA TRADING 28 C.C. Third Respondent ITEC (CAPE TOWN) C.C. Fourth Respondent

JUDGMENT: delivered on 17th May 2007

KLOPPER AJ: INTRODUCTION: On the 14th July 2006, the applicant made an ex parte application and

was granted the following order:

“

1. The Respondents are ordered to show cause before this Honourable

Court at 10h00 on Friday 4th August 2006 why an order in the following

terms should not be made:

(a) That the listed items in the possession of the sheriff pursuant to the

execution of this order should not be retained by him pending the

directions of this order; and

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(b) Why the costs of this application, including the costs of the supervising

attorney, should not stand over for determination in the action referred

to in paragraph 7 below.

2. The Respondents or the persons on whom service is effected in terms of

paragraph 9 below are ordered to allow the Sheriff, ANDRIES ADRIAAN

CLUYLER (“the supervising attorney”), together with OCKERT HUGO

KRUGER, the Applicant’s attorney and DARYL GRANT SHERWOOD, being

the managing director of the Applicant, accompanying them to immediately

enter the premises at ITEC HOUSE, corner of Ratanga Road and Century

Boulevard, Century City, Cape Town and any vehicles on such premises for

the purpose of searching for and delivering into the possession of the Sheriff

all the documents an articles which are listed in the schedule set out at the

foot of this order (“the listed items”) or which any of the aforementioned

persons believes to be listed items.

3. The Respondents or the persons on whom service is effected in terms of

paragraph 9 below are further ordered to permit the said persons to remain

on the premises until the search has been completed, and, if necessary, to

re-enter the premises on the same or following day in order to complete the

search.

4. The supervising attorney shall, together with the Sheriff, make a list of all

items removed by the Sheriff in terms of this order. A copy of this list shall be

handed by the supervising attorney to the Applicant’s attorney and to the

Respondents or the persons referred to in paragraph 3 above, if present, and

a copy shall be retained by the Sheriff.

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5. In the event that any of the listed items exists only in computer readable

form, the persons referred to in paragraph 3 above are ordered forthwith to

provide the Sheriff with effective access to the computers, with all necessary

passwords, to enable them to be searched, and cause the listed items to be

printed out, a print-out of these items is to be given to the Sheriff or displayed

on the computer screen so that it may be read and copied by him.

6. All listed items or copies thereof taken into possession by the Sheriff

pursuant to this order, shall be retained by him until the Court orders

otherwise. Save as provided hereinafter, no person shall be entitled to

inspect any of the items taken into possession by the Sheriff nor shall any

copies be made of such items; provided that, pending the return day and for

the sole purpose of satisfying themselves that the inventory correctly reflects

the items seized, the Respondents and their attorneys shall be entitled to

inspect the items in the Sheriff’s possession.

7. The Applicant is directed to institute an action against the Respondents

within 10 days of the date of this order, and if it fails, without good cause

being shown on the return day to have instituted such action by that date, the

Sheriff shall be obliged to return all listed items to the Respondents

immediately, and in such event the Court, in its discretion, shall make such

order as it deems meet. This order shall under no circumstances constitute a

bar to any action the Respondents may be advised to institute against the

Applicant for damages (or other relief) sustained or claimed in consequence

of these proceedings.

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8. On the return day there shall be placed before the court the report of the

supervising attorney with proof that a copy thereof has been served on the

Applicant’s attorney and on the Respondents (or their attorneys) and an

affidavit of the Applicant’s attorney that the said action has been instituted

and, of not, the reasons why this has not been done.

9. Service of this order together with the notice to the Respondents shall be

affected by the Sheriff on the Respondents or the person in charge of the

premises and the contents thereof explained by the supervising attorney

before the provisions of paragraph 2 of this order are carried out.

10. In addition to the service referred to in paragraph 9 above, service or this

order together with the notice of motion and supporting affidavits and

accompanying notice to the Respondents shall be effected by the Sheriff

in accordance with the Rules of Court and by not later than 48 hours

after the supervising attorney had directed that the search has been

completed.

11. The provisions of paragraphs 2, 3 and 5 of this order may only be carried

out in the presence and under the supervision of the supervising

attorney.

SCHEDULE OF LISTED ITEMS

1. Applicant’s customer data base;

2. The software package known as CUSTOMER HARVESTER which was developed

specifically for NASHUA;

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3. All documentation evidencing encroachment by the First and Second Respondent

whether directly or indirectly or through the vehicles of the Third and Fourth

Respondents into the Applicant’s exclusive area of franchise;

4. Any and all documents reflecting payment by the Fourth Respondent to the First

and/or Second and/or Third Respondents in respect of transactions concluded with

customers, whose businesses are situated within the Applicant’s exclusive franchise

area.”

The order therefore contained a rule nisi with a return date of the 4th

August 2006 and furthermore specifically dealt with the procedure to

be followed in the execution of the so-called “Anton Piller” order.

The order was executed on the 17 and 19th of July 2006 and

documentation was seized as well as what is described as a

“battered hard drive” belonging to the second respondent.

The supervising attorney filed a report in terms of paragraph 8 of the

order.

The rule was extended until the 19th of February 2007.

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During the execution of the order the respondents were represented

by an attorney-Nils Nilssen.

There has been a settlement between the applicant and the fourth

respondent.

The applicant has instituted an action in compliance with paragraph 7

of the order under case number 7962/06.

THE MAIN REASONS FOR THE ANTON PILLER ORDER

The main reasons advanced by the applicant for the order were as

follows:

(a) That the first and second respondents were acting in

breach of a confidentiality and restraint clause contained in

their letters of appointment applicable to their previous

contract of employment with the applicant;

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(b) That the third and fourth respondents were competing

unlawfully with the applicant using the knowledge of trade

secrets and confidential information acquired by first and

second respondents;

(c) The applicant intended to institute a claim for damages and

believed that evidence in the possession of the

respondents would be hidden or destroyed which was vital

to the applicant’s claim.

THE LEGAL POSITION

The practice of granting Anton Piller orders arose in the 1970’s and

seems to have been received with mixed feelings regarding the

Courts inherent powers to grant such an order.

In Universal City Studios Inc and Others v Network Video (Pty)

Ltd 1989(2) SA 734 (A) Corbett JA (as he then was) delivering the

unanimous decision of the Court held that it was within the inherent

powers of the Court to grant such an order.

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He stated at 755:

“In a case were the applicant can establish prima facie that he has a cause of action

against the respondent which he intents 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, ( (and) 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 … and the applicant asks the Court to make an order designed to

preserve the evidence in some way.”

The Court furthermore held that the order was only to preserve

specific evidence for trial, and not in order to found a cause or

causes of action.

In Shoba v Officer Commanding, Temporary Police Camp,

Wagendrift Dam and Another; Maphanga v Officer

Commanding; SA Police Murder and Robbery Unit,

Pietermaritzburg and Others 1995(4) SA 1 (A), the Court held

that Anton Piller orders directed at the preservation of evidence

may be granted, even on an ex parte basis and in camera, if

the requirements indicated in the Universal City Studios case

are satisfied.

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What, however, remains clear is that Anton Piller orders have

become a necessary evil in certain circumstances and will

remain so until a successful constitutional challenge is brought.

What is furthermore clear is that by its very nature it violates the

rights of persons who are affected by its terms.

In Rath v Rees 2007 (1) SA 99 CPD at 107 Van Zyl J

describes it as:

“…a Draconian form of relief”.

In an earlier reported judgment Roamer Watch Co SA and

Another v African Textile Distributors also t/a MK Patel

Wholesale Merchants and Direct Importers 1980 (2) SA 254

(W) Cilliers AJ ruled that a Court should adopt a cautious and

circumspect approach to such an application and if the relief is

granted, stringent safeguards should be built into the order.

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It has indeed become the practice of this Division that orders of

this nature are to follow a set form and the execution thereof

must meet certain requirements (See Practice Note No 18).

The requirements for the order as indicated in Shoba v Officer

Commanding supra are that the applicant has to establish

prima facie:

1. that he, has a cause of action against the respondent(s)

which he intends to pursue;

2. that the respondent(s) are in possession of 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

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manner spirited away by the time the case comes to trial

or at the stage of discovery.

As appears from the arguments of Counsel, a number of disputes

relating to the process and more specifically the manner in which the

order was executed have arisen.

There was no request to call witnesses or to produce evidence and it

appeared that Counsel were in agreement that this Court should

consider the matter on the papers alone.

Mr Berthold for the applicant (to whom I am indebted) has referred

me to the different approaches adopted concerning the test to be

applied on the return date.

In Sun World International Inc v Unifruco Ltd 1998(3) SA 151

(CPD) at 163 Van Reenen J stated:

“If an identical evidential criterion were to be applied on the opposed return day of an

Anton Piller order it would result therein that factual issues in the affidavits would have to

be resolved without regard to a respondent’s rebutting evidence. Such an approach

would clearly be inappropriate. (cƒ Kalil v Decotex (Pty) Ltd and Another (supra) at 976 I)

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and I accordingly incline to the view that the usual evidential criteria should apply in those

circumstances”.

Van Reenen J in the circumstances of the case found it unnecessary

to express an opinion on which of the two generally accepted tests for

the resolution of disputes would be applicable.

In Rath v Rees supra at 109 Van Zyl J stated:

“There is no rule of thumb as to when exactly the granting of an Anton Piller order will

constitute a reasonable and justifiable limitation on a respondent’s right to privacy. Each

case will have to be considered and assessed on its own merits and circumstances.

Although the Rules of Court make no provisions for an order of this nature, it clearly

arises from the inherent power of the High Court to regulate its own procedures in the

interests of the proper administration of justice. See the Universal City Studios case

(supra) at 745 G and the Shoba case (supra) at 171 – 18 B. The Court of course retains

its discretion whether or not to grant such order.”

In The Reclamation Group (Pty) Ltd v Smit and Others 2004 (1)

SA 215 SECLD at 221 Froneman J adopted a different approach and

held:

“In Sun World International Inc v Unifruro Ltd 1998(3) SA 151 (C) Van Reenen J

suggested, at 162 I – 163 C, that, on the ‘return’ day of such an order, it might be

appropriate to determine what constitutes prima facie proof of these requirements by

using the ‘usual evidential criteria’. That would mean that the applicant would need to

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prove all these requirements on a balance of probabilities apparent from all the papers

before Court…”

“Such a general and undifferentiated approach would not in my judgment, be appropriate.

The ‘evidential criteria’ to be applied at this stage of reconsideration would depend to a

large extent, on what purpose the three requirements served at the ex parte stage, what

the purpose of the relief sought at that stage was; what purpose these requirements may

still serve at the reconsideration stage; and what relief is ought by the applicant at

present. In addition, if (such as in this case) the original order is attacked on the basis

that it was obtained in bad faith, considerations of who bears the onus in that regard may

well be different from that in respect of the requirements for an Anton Piller order.”

Froneman J went on to hold that at the reconsideration stage a party

alleging bad faith or non-disclosure bears the onus of proving it on

the papers.

In Frangos v Corpcapital Ltd and Others 2004 (2) SA 643 TPD at

648 Basson J with reference to the Sun World case supra remarked

as follows:

“However, it appears that when the matter is opposed on the return day (such as the

case in casu), the test of mere prima facie proof in disposing of the applicant’s onus may

be inappropriate and that the ordinary rules relating to the proof of facts in motion

proceedings ought to apply.”

In this case the reconsideration stage is characterised by two forms

of challenge:

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a) That the applicant misled the Court when the ex parte order

was obtained or did not disclose all the material facts when the

application was made and;

b) That the execution of the order was materially flawed and

amounted to a gross abuse of process.

There appears to be little consensus on the manner in which disputes

are to be dealt with and Counsel did not express a definite opinion in

this regard.

Because of the nature of Anton Piller orders and the fact that the

Court, in my view, retains its inherent discretion even at the

reconsideration stage I incline to the view expressed by Van Reenen

J in the Sun World case that the usual evidential criteria should apply.

I am furthermore of the view that in cases where a dispute of facts

has arisen on the papers, the approach adopted in Plascon-Evans

Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A) is

applicable and appropriate.

THE CRITERIA FOR THE ISSUE OF AN ORDER

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I intend for the purposes of this judgment to deal very briefly with

these aspects as they are not really in dispute and are not the

reasons why it is requested that the Order be discharged.

1) A Cause Of Action

It appears that there is a cause of action and the respondents do not

dispute this.

2) The respondents have in their possession specific (or

specified) documents or things which constitute vital

evidence, in substantiation of the applicant’s Cause Of

Action

This aspect is also not denied by the respondents’ and the

customer database and other documentation described in the

order was found in the possession of the respondents.

3) There is a real and well-founded apprehension that this

evidence may be hidden or destroyed or in some manner

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spirited away by the time the case comes to trial or to the

stage of discovery

After considering the papers I will for the purpose of this judgment

accept that this requirement has been met and that applicant’s fears

were genuine and bona fide in the circumstances.

The manner in which the search and retrieval of the evidence was

conducted is, however, a point of contention and will be dealt with

infra.

THE REQUIREMENT OF GOOD FAITH

There is a wealth of authority that supports the fact that an applicant

making an ex parte application must observe the utmost good faith in

preparing and presenting the application. See Hall and Another v

Heyns and Others 1991(1) SA 381 (C) at 397 B and National

Director of Public Prosecutions v Basson 2002(1) SA 419 (SCA)

to cite but two.

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In the latter case Nugent JA stated at 426:

“Where an order is sought ex parte it is well established that the utmost good faith must

be observed. All material facts must be disclosed which might influence a court in

coming to its decision, and the withholding or suppression of material facts, by itself,

entitles a court to set aside an order, even if the non-disclosure or suppression was not

wilful or mala fide.”

See also the recent decision of Bozalek J in Audio Vehicle

Systems v Whitfield and Another 2007(1) SA 434(C) at 443.

In the founding affidavit of the applicant one of the main contentions

used to persuade the Court granting the ex parte application was that

the respondents had made approaches to existing clients of the

applicant. Although Mr Berthold, for the applicant, refers to the

reference to the Department of Water Affairs and Forestry as an

example of encroachments by the respondents and therefore not

material, there can be no doubt in my view that that reference played

an important and integral part in supplying content and substance to

the application and was an aspect which the Court would have clearly

considered when deciding whether to grant an order or not.

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The impression created by the applicant as highlighted by Mr

Tredoux for the respondents was that one of the existing clients of

the applicants had been “poached by any or all of the Respondents”

and the deal was “worth in the order of R2 million”.

The applicant furthermore asserted that the offer had made by Naledi

Office Automation (Pty) Ltd, which is the Black Economic

Empowerment arm of the fourth respondent.

Mr Tredoux argued that these facts were calculated to persuade the

court to grant an order, which it might otherwise not have granted.

The true facts of the matter were that the Department of Water Affairs

and Forestry had invited offers from the public by way of tender, that

Naledi Office Automation is not the BEE arm of the fourth respondent

and could not have influenced the tender process in any way, and the

applicant did not make an offer in response to the tender, but Nashua

Kopana had submitted the offer. Mr Tredoux also argued that the

applicant’s interest in Nashua Kopana had not been disclosed to the

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Department and it could therefore not have lawfully made any profit. It

was argued that these facts should have been disclosed to the Court.

ALLEGED BREACHES OF THE COURT’S ORDER

A general reading of the papers leaves me with a clear impression

that the applicant from the outset and although it was not certain what

was going to be found, had a clear intention about the manner in

which it was going to conduct the search.

Because of the potential for the infringement of rights the Anton Piller

order contains very specific instructions on:

a) who is entitled to enter the premises;

b) what documents or articles are capable of search and

seizure;

c) dealing with documents on a computer.

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These instructions are generally incorporated in the Order of Court

after the applicant sets out the procedure to be followed in its papers

and the Court has had an opportunity to consider and decide whether

such procedures are reasonable and necessary in order to give effect

to the order. As already indicated supra the importance of following a

fixed approach and in specifying the procedure of the search is

highlighted by the fact that it was deemed necessary to incorporate a

draft order in a Practice Note in this Division.

Mr Tredoux for the respondents argued in my view most convincingly

that the process and procedure followed by the applicant amounted

to a contravention of the order or was very seriously flawed in a

number of ways, which included:

a) The fact that the applicant arrived at the premises and

gained access to it, with a number of persons who were not

authorised by the Court order to do so;

b) That these persons (computer experts) furthermore became

the central focus of the search and seizure process and it is

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alleged utilised various forms of hardware and software to

assist with the tracing, storing and retrieving of data;

c) That the methods employed included the use of notebook

computers, USB portable storage devices, portable hard

drives, computer software and a PCMCIA Mobile Connect

Data Card.

d) No reference to the use of these devices (in c above) was

made in the application and the Court Order did not

authorise the applicant to use them in the search and

seizure process. Likewise the Court could not consider and

decide whether it would authorise the presence of such

persons or the use of any such devices.

The Court order in paragraph 2 sets out clearly the persons

authorised to enter the premises and to conduct the search. These

include the Sheriff, Andries Cuyler, Ockert Kruger and Daryl

Sherwood. No mention is made of the use of computer experts.

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With specific reference to items existing only in “computer readable

form”, the sheriff was to obtain passwords in order to search the

computers, make printouts, read and copy.

The respondents also allege that because of the manner in which

data was accessed, considerable damage was done to non-related

software and the “provenance of the data was compromised”.

In an affidavit by Craig Cawood, a computer expert, on page 276 of

the papers, he concludes:

“32 I am therefore of the opinion that forensic search performed by the Applicants in this

matter was inexpertly and inadequately executed, and that the integrity of the

evidence may have been compromised as a consequence.

33. If the Applicant had followed the letter of the court order strictly and had not

introduced its own computer equipment and had simply printed out copies of

documents the result of the search, although not ideal, would not have been

undermined to the same extent.”

In my opinion and for the reasons given by Mr Cawood, a persuasive

argument in this regard is made out.

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Mr Tredoux also argued that the execution of the Court order was

fatally flawed in that:

23.1 “Unauthorised persons (i.e. directors of the Applicant)

were permitted to be present on the premises as part of

the search party;

23.2 The Applicant (and supervising attorney and sheriff)

misrepresented that the said unauthorised persons were

permitted by the Court Order to be present;

23.3 The said unauthorised persons were permitted to

participate in the search;

23.4 The Applicant’s agents loaded computer software onto

the computers of the Respondents without there being

any or adequate supervision of their conduct.

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23.5 There was no control over the manner in which the

Applicant’s agents accessed the information, and it is

probable that they removed information;

23.6 The Applicant’s agents deliberately damaged data which

they found on the computers belonging to First

Respondent;

23.7 The Applicant’s agents frequently addressed the

Respondents and other persons in abusive language.”

The supervising attorney in his report creates the impression that the

failure to adhere to the strict letter of the order in many respects

formed part of a normal execution of the order or was nothing out of

the ordinary.

I would under the circumstances have expected him in the execution

of his duties to identify all the instances in the report where the Court

order was not being followed and to at least address the reasons for

not adhering to it.

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As an example and with reference to the manner in which the search

of electronic data was conducted, he merely declares on page 78 of

the papers:

“16 With the assistance of the first and second respondents

the technical director of the applicant, a certain Mr

Jonathan Beeka, was given the necessary passwords to

access and search the information contained in electronic

forms on the said computer.”

Mr Beeka was never authorised to do anything in terms of the

order.

See also page 80 and at paragraph 30 the reference to Mr Wayne

Turner, an IT specialist.

It may also be noted that a search for a hard drive, which appeared to

be damaged, was conducted and the hard drive was subsequently

attached and handed to the Sheriff.

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This was also not authorised by the Court order and it not reflected in

the “Schedule of Listed Items”.

The attachment of this item in my view clearly indicates that the

parties conducting the search did not intend following the Court order

to its letter and adapted the process to suit themselves.

In Audio Vehicle Systems v Whitfield and Another supra at 446,

Bozalek J expressed the following sentiments (with which I

respectfully agree) in a similar situation:

“This attitude is tantamount, in my view, to the applicant once again reserving to itself the right to

dictate or amend the terms of the Court order where it regarded this as appropriate or justified.”

The supervising attorney furthermore indicates a scant recognition for

the fact that some authorisation is necessary in regard to the hard

drive when he states on page 81 of the papers at paragraph 37:

“The hard drive was duly attached by the Sheriff to enable the

information, if any contained thereon to be retrieved during a

possible reconstruction of the said hard drive if the Honourable

Court so orders (my emphasis).

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It is highly improbable in my view that the supervising attorney

or the respondent’s attorney would have had the expertise to

control, supervise or restrict the IT experts when they searched

and retrieved information using expert methods.

Mr Berthold argued that one would have expected the

respondents’ attorney to be more vocal concerning the

irregularities. This is indeed so, but it would once again have

depended on the knowledge of this attorney concerning Anton

Piller matters, his computer knowledge and the manner in

which the searches were conducted in various places and on

various computers.

The overall impression left by the papers of the search process

seem to indicate that various activities were taking place at the

same time by different people and not necessarily at the same

place and that the attorney was not present during the entire

proceedings, nor could he have witnessed all the activities

taking place.

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In my view the fact that these issues were not raised does not

alter the fact that they took place without being authorised by

the Court order. The fact that the sheriff and the attorneys were

not granted the opportunity to answer the allegations made by

the respondents is to be regretted, but, in my view, still does not

change the fact that in a number of instances the Court order

was not adhered to or actions took place which exceeded

authorisation.

The applicant alleges that the performance of most actions not

authorised by the Court order was done by consent, whilst the

respondents deny this. Bearing in mind the nature of the Court

order and the pending action against the respondents, I am of

the view that the respondents’ allegations or denial in this

regard is not far-fetched or untenable in that this Court should

reject them merely on the papers. It is in my view furthermore

highly improbable that the respondents would have consented

to such blatant deviations from the procedure set out in the

Court order given the nature of the order and its effect.

Applicant’s conduct displayed from the outset (as referred to

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above) seems to suggest that it was not really perturbed by the

fact that it was following a process which in most respects was

neither disclosed to the Court, nor authorised by the Court. The

applicant came to the premises armed with the tools which it

intended using to conduct the search and accompanied by

those persons which it intended would conduct the search. I

find it very strange that the applicant deemed it appropriate not

to take the Court issuing the order into its confidence and to

explain the process it intended to follow to that Court so that the

Court could apply its mind to those facts.

THE RULES GOVERNING THE EXECUTION OF THE ORDER

AND THE EFFECT THEREOF

In The Civil Practice of the Supreme Court of South Africa (4th

Edition) – Van Winsen, Cilliers, Loots, the learned writers state

the following regarding the execution of the order at 1107:

“Anton Piller orders have enormous potential for harm and must accordingly be

meticulously executed according to the letter of the order.

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If, in executing the order, the applicant exceeds the authority granted in the rule

or departs from its terms, the court may apply the sanction of discharging the rule

and may also make an adverse order of costs against the applicant.”

In Audio Vehicle Systems v Whitfield and Another

supra, Bozalek J at 443 states:

“Similar rigorous controls apply to the execution of the order. Because of the

highly invasive nature of such orders execution thereof must be meticulous and

strictly according to the letter thereof.”

That the execution of the order by unauthorised persons is

viewed in a serious light is reflected in the remarks of Conradie

J in Hall and Another v Heyns and Others supra at 392:

“I have noted Mr Van der Berg’s submissions and I think that the matters of

which he complained are quite serious, but perhaps not as serious as they might

have been if the unauthorised persons had been actively involved in the

execution of the Anton Piller orders.”

Also see Anton Piller KG v Manufacturing Processes Ltd and

Others 1976 All ER 779 and Francois V Corpcapital Ltd and

Others 2004(2) SA 643 at 654 and 655.

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CONCLUSION

Despite a number of disputes between the parties I am of the opinion

that on the papers alone it possible for me to decide the issues

effectively.

Firstly, I conclude that the precise facts concerning the Department of

Water Affairs should have been disclosed by the applicant and that

these were facts which required consideration by the Court granting

the order.

Although it appears that the applicant was not wilful in this regard

there is a strong possibility that the correct facts would have

influenced the Court’s decision.

See National Director of Public Prosecutions v Basson (supra). If

these facts were not material then there would have been no logical

reason for applicant to inform the Court of it in such detail.

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Secondly, and despite the disputes in this regard I am of the view that

the applicant:

a) allowed unauthorised persons to form part of the search and

seizure process and adopted methods which were not

authorised by the Court order;

b) attached and handed to the Sheriff an item not authorised by

the order;

c) failed to inform the Court concerning its specific mode of

search and to obtain an order authorising this process.

I am furthermore of the view that these aspects, viewed both

individually and cumulatively, (and seen in the light of the weight

attached to strict compliance of the order and the reasons why this

approach is to be encouraged), are sufficient reasons for discharging

the order.

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Costs

Mr Tredoux submitted that it would be appropriate for me to express

my displeasure at the manner in which the applicant conducted itself

by making an order of costs on the attorney and client scale.

Although I have found that there were flaws in the execution of the

order and a failure to disclose all the material facts, I am reminded

that the applicant prima facie satisfied the basic criteria for obtaining

an order and that this does not appear to be a vexatious and frivolous

proceeding. I am of the view that there is an absence of special

circumstances to warrant a deviation from the ordinary rule.

ORDER

a) In the result, the rule nisi and the Anton Piller Order are

discharged;

b) The relevant Sheriff is directed forthwith to return all

items attached by him to the respondents;

c) The applicant is ordered to pay the respondents’ costs.

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______________________

KLOPPER, AJ

Adv Berthold for the Applicant Adv Tredoux for the Respondents