[24] An Anton Piller order is one which is served on a respondent "out of the blue", and it is intended to be instantly
executed. Its prejudicial effects may be irreversible. See Hall and another v Heyns and others 1991 (1) SA 381
(C) at 387DE).
[25] Anton Piller orders are granted for the attachment of documents and other things to which no right is claimed
except that they should be preserved
Page 203 of [2001] 3 All SA 194 (C)
for and produced as evidence in an intended court case between the parties. See Cerebos case (supra) at
164B. See also Universal City Studios Inc v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 755AC).
[26] Anton Piller orders have been referred to as unusual orders to be made in unusual circumstances, that the
relief is of a draconian nature and that such orders will only be granted in a strong case where the
circumstances are exceptional to the extent that it plainly appears that justice requires the intervention of the
court. See Cerebos case (supra) at 159H160B. See also the leading case of Shoba v OC, Temporary Police Camp,
Wagendrift Dam 1995 (4) SA 1 (A) at 15GJ).
[27] Notwithstanding Mr MacWilliam's contentions to the contrary, I find that on a reading of the founding papers,
the items referred to in Part B of the schedule of listed items were regarded as vital evidence "to establish the
extent of the first applicant's damages . . .". Furthermore, it was alleged in the founding papers that the items
listed in Part B constituted vital evidence which needed to be preserved, and that the items of the order
sought went no further than was "strictly necessary for the preservation of the evidence".
[28] As stated above, Mr Hodes contended that Part B was far too widely framed. This was conceded by Mr
MacWilliam, correctly in my view. It is clear that the applicants were not entitled, for the purpose of computing
damages, to copies of all the respondents' computer records which would have included the documents sought
in (b) of Part B. It escapes me how it could be contended that all of the respondents' computer records
constitute vital evidence, and that the terms of the order go no further than is "strictly necessary for the
preservation of evidence".
[29] M r MacWilliam argued that although the said order was too widely framed, the court should exercise the
discretion vested in it in refusing to discharge the rule because there was no prejudice to the respondents. He
stated that the terms of the order gave full protection to the respondents, there was no right of inspection of
the documents attached and that documents of a personal or private nature would have been inspected in any
event by the supervising attorney and the applicants' attorney. Mr MacWilliam further argued that there was no
intention to adopt an abusive procedure.
[30] Mr Hodes did not contend that the applicants had intentionally adopted an abusive procedure.
[31] Before setting out what I believe to be the proper approach in a matter of this kind, I wish to refer to certain
authorities on this topic.
[32] It is trite that the order sought should go no further than is strictly necessary for the preservation of the
evidence sought to be preserved. See Herbstein and Van Winsen The Civil Practice of the Supreme court (4ed)
at 1102. See also Hall's case (supra) at 388C390C).
[33] Furthermore, in the latter case, at 387F, Conradie J said:
"An applicant's legal advisers should in these circumstances be particularly careful to ensure that the draft order
which they submit to the Court is clear and does not, . . . go beyond what the decided cases permit . . ."
[34] Later in the judgment, at 394G, Conradie J took the view that the Anton Piller orders were "seriously flawed".
Page 204 of [2001] 3 All SA 194 (C)
[35] In the case of Dabelstein and others v Hildebrandt and others2 1996 (3) SA 42 (C), at 69HI, Farlam J (as he then
was) referred to the fact that certain of the documents went "further than is warranted in the circumstances
and should be deleted".
[36] In the case of Pohlman and others v Van Schalkwyk and others 2001 (1) SA 690 (E) at 698J, Froneman J found
that "only specified documents or things may be attached, copied or taken into possession", and at 696/7 he
stated that the applicants "in my view got too much and they got it too easily".
[37] In the case of Sun World (supra) at 162CH, Van Reenen J referred to Shoba's case (supra) at 15GJ to the effect
that:
"Prima facie proof is required in respect of the following prerequisites for the granting of an Anton Piller order
which entails the entry and search of premises:
(a) that the applicant has a cause of action against the respondent and intends to pursue it;
(b) that the respondent has in his or her possession specific (and specified) documents or things in respect of
which the applicant cannot claim a real or personal right that constitute vital evidence, in the sense of being of
great importance to substantiate the applicant's cause of action; or that '. . . its nonavailability at the trial would
result in the administration of justice being defeated'; and
(c) that there is a real and wellfounded apprehension that such evidence may be hidden, destroyed or in some
manner spirited away by the time the case comes to trial or discovery has to be made." (The underlining is
added for emphasis.)
[38] Later in the said judgment Van Reenen J found that the question whether the schedule of listed items was
sufficiently delineated for the purpose of compliance with the requirements of Anton Piller relief must be
assessed having regard to various factors, one of which was the fact that the documents in question were