Anton Piller order: The Supreme Court of Appeal allowed the appeal and confirmed the provisional order granted in August 2012 but in an amended form.  It had been established that the other party possessed specific documents or things that constitute vital evidence in substantiation of the applicant’s cause of action.  ‘Strict compliance with this requirement is pivotal to the legality of the use of the procedure. The reason for this requirement is obvious. The procedure has, potentially, draconian and extremely invasive consequences for respondents or defendants who are subject to it’.  The search leg of the order can manifestly intrude on the right to privacy guaranteed in s 14 of the Constitution.  Courts must balance interests based on proportionality and only vital evidence may be the subject of the search.  Specified documents must be vital evidence and a blanket search for unspecified documents or evidence is not allowed.

Non-Detonating Solutions (Pty) Ltd v Durie (20440/2014) [2015] ZASCA 154 (2 October 2015) per Mbha JA (Mhlantla, Theron and Petse JJA and Van der Merwe AJA concurring).

The requirements for Anton Piller relief

[18] The use of Anton Piller orders in our law is now well-established.[2] The requirements that must be satisfied for the granting of such an order were summed up by Corbett JA in Universal City Studios Inc v Network Video (Pty) Ltd,[3] as follows:

‘In a case where the applicant can establish prima facie that he has a cause of action against the respondent which he intends to pursue, that the respondent has in his possession specific documents or things which constitute vital evidence in substantiation of the applicant’s cause of action (but in respect of which the applicant can claim no real or personal right), that there is a real and well-founded apprehension that this evidence may be hidden or destroyed or in some manner spirited away by the time the case comes to trial, or at any rate to the stage of discovery, and the applicant asks the court to make an order designed to preserve the evidence in some way . . .’

[19] The purpose of Anton Piller orders is therefore to preserve evidence to be used in a forthcoming dispute. Such evidence must constitute vital evidence in substantiation of the applicant’s cause of action.[4]

[20] While it must be acknowledged that Anton Piller orders have the potential to impact negatively on the right to privacy guaranteed in s 14 of the Constitution, they are necessary and proportionate to the legitimate aim pursued.[5]

Whatever harm or inconvenience might be caused to the respondent can be attenuated by the inherent principle of proportionality which requires a balancing of competing interests and values. This resonates with what Chaskalson P stated in S v Makwanyane and another, that the limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values and ultimately an assessment based on proportionality.[6]

Thus Corbett CJ recognized that in exercising its discretion whether or not to grant an Anton Piller order, the court must pay regard to inter alia, the cogency of the prima facie case established, 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.’ [7]

This balancing of interests is particularly crucial on reconsideration of the interim order on the return day when the court adjudicating the application has been furnished with all the relevant evidence including the respondent’s opposing affidavit, as happened in this case. Thus courts must constantly be wary that the refusal to grant an Anton Piller order could, in a deserving case, result in a denial of justice”.

Refer also to:

  • Mathias International Ltd v Baillache (23347/09) [2010] ZAWCHC 68; 2015 (2) SA 357 (WCC) (8 March 2010) per Binns-Ward J.
  • Quindell Business Process Outsourcing (Pty) Limited v Bespoke BPO (Pty) Limited (9796/2015) [2017] ZAKZDHC 9 (22 March 2017) per Henriques J.

Form of order:

“[4] The order granted by Jeffrey AJ on 18 September 2015 insofar as the ex parte relief is concerned reads as follows:

‘1. Authorising the Sheriff of the above Honourable Court, duly assisted by

  • a technician from Universal Networks CC, Tyron Anthony Hussey,
  • the Applicant’s Attorney Henning Johannes Du Toit,
  • the independent supervising attorney, and
  • further assisted by Dean Anderson of the Applicant,

to attend at the business premises of the Respondent at 302 Prince Alfred Street, Pietermaritzburg, KwaZulu-Natal and there to:

1.1 search the premises for any computer equipment and recordable devices and documentation;

1.2 make two mirror images of the following information from the hard drives of any computers there found, one of which shall be sealed and handed to the Sheriff for safe-keeping pending the conclusion of these proceedings and to provide the other copy to the Applicant for the purposes of preparing further affidavits in these proceedings:
1.2.1 all contracts (whether in draft, unsigned or signed) involving customers of the Applicant as set out in annexure “A” hereto (hereinafter referred to as “Applicant’s customers”);
1.2.2 all voice loggings with any of the Applicant’s customers;
1.2.3 hard or soft copies of the Applicant’s client file list or data base;
1.2.4 all and any letters of employment and employment contracts between the Respondent or any affiliated entity of the Respondent and with:
. . . . .

1.3 make copies of the information set out in paragraphs 1.2.1, 1.2.2, 1.2.3 and 1.2.4 above stored on any recordable devices or documentation found at the Respondent’s premises, and to retain any such devices or documentation containing any information belonging to the Applicant or concerning the Applicant’s business activities, for safe-keeping pending the conclusion of these proceedings.

2. Ordering that the order in paragraphs 1.1, 1.2 and 1.3 above operate as an interim order, pending the application for the relief set out in the main application as recorded in the Notice of Motion dated 16th September 2015.

3. Authorising the Respondent to approach this Court if so advised, on 24 hours’ notice to the Applicant, to set aside this interim order.

4. That the costs of this application be costs in the main application.’

Extracts from  judgment of Henriques J.

“Anton Piller Orders

[10] An Anton Piller order authorizes the search and seizure of documents and related material relevant to proceedings which an applicant intends to pursue, and is directed at the preservation of evidence. By its very nature, it is an order sought for procedural relief for the preservation of evidence which will ultimately be used to secure substantive relief.[3] Normally such application is an ex parte application and is often heard in camera. An applicant must show that notice to the respondent may render the relief nugatory[4] and such order provides instant relief subject to a variation, or discharge of the order at a later date, alternatively, a reconsideration thereof.[5]

[11] An applicant for such relief must satisfy the court prima facie, that it has a cause of action against the respondent which it intends to pursue:

[11.1] that the respondent is in possession of specific and specified documents or things that constitute vital evidence to substantiate the applicant’s cause of action to which the applicant does not have a real or personal right;
[11.2] that there is a real and well-founded apprehension that such evidence may be destroyed or in some way be spirited away before discovery or by the time the case comes to trial.[6]

[12] A court has a discretion whether or not to grant an Anton Piller order, and if it does decide to exercise such discretion, may stipulate what terms the form of the order ought to take.

[13] In exercising its discretion, a court must often weigh the potential harm to be suffered by the respondent if an order is granted, as against the potential harm to the applicant if the relief is withheld. Anton Piller orders are often regarded as invasive and potentially harmful and are often seen as being draconian in nature and should be granted only in exceptional circumstances.[7]

[14] In issuing an order, a court must consider that the terms of the order sought are no more onerous than is necessary to protect the interests of the applicant. A wide framing of an order may not be willful or mala fide to result in the discharge of a rule nisi. If the order is too wide, an applicant must show cogent reasons as to why the order should not be discharged.

[15] In our division, the draft order must prohibit anyone, without the leave of court, from disclosing any fact relating to the application and enable the sheriff to enter and search the premises to seize, attach, and remove specified material and retain same in his possession pending the court’s direction. A court order may in fact stipulate that the acts to be performed by the sheriff must be done, under the supervision of the applicant’s attorney and a supervisory attorney.[8]

[16] It has been repeatedly held that the purpose of an Anton Piller order is to preserve evidence and is not a fishing expedition.[9] It is not designed to enable a prospective litigant to either see or gain access to his adversary’s documents”.