required solely for the purpose of computing the quantum of the applicant's claim (see judgment, at 173GI).
[39] Furthermore, in the case of S v Hammer and others 1994 (2) SACR 496 (C) at 499e, Farlam J (as he then was)
said:
"An untrammelled search for the truth, should be balanced by discretionary measures, for in the words of Knight
Bruce VC, 'Truth, like other good things, may be loved unwisely it may be pursued too keenly may cost too
much'." (The underlining is added for emphasis.)
[40] No authority was quoted to me by either counsel as to what the test should be in deciding whether to
discharge a rule where the order of court was too widely framed and went further than what "the decided
cases permit".
[41] In the case of Schlesinger v Schlesinger 1979 (4) SA 342 (W), Le Roux J was called upon to decide when a court
would exercise its discretion in favour of a party who had been remiss in its duty to make a full disclosure in an
ex parte application. At 349AB, the learned Judge referred to various authorities and said:
"It appears quite clearly from these authorities that:
(1) in ex parte applications all material facts must be disclosed which might influence a Court in coming to a
decision;
Page 205 of [2001] 3 All SA 194 (C)
(2) the nondisclosure or suppression of facts need not be wilful or mala fide to incur the penalty of rescission; and
(3) the Court, apprised of the true facts, has a discretion to set aside the former order or to preserve it." (The
underlining is added for emphasis.)
[42] At 350B, the learned Judge further found that unless there were "very cogent practical reasons" why an order
should not be rescinded, "the Court will always frown on an order obtained ex parte on incomplete information
and will set it aside . . .
[43] I would accordingly make the following findings in regard to Anton Piller orders:
43.1 The overall onus of establishing entitlement to relief claimed remains with an applicant. See Sun World
(supra) at 163D.
43.2 The unnecessarily wide framing of an order of court need not be wilful or mala fide to incur the penalty of
the discharge of a rule.
43.3 An applicant has the onus of satisfying the court that there was a justification for the attachment of the
documents reflected in the court order.
43.4 Where it is found that the order of court has gone too far, the onus is on an applicant to establish very
cogent practical reasons as to why such an order should not be discharged. See Sun World (supra) at
174A.
43.5 The court has a discretion to discharge such an order when the matter is brought up for reconsideration,
and in respect of which many factors may play a role, depending upon the facts of the case.
[44] In my view, the order of court relating to the documents in Part B was "seriously flawed", and it could hardly be
contended that "copies of all the respondents' computer records" were required for the computation of the
quantum of the claim for damages.
[45] I do not find that any cogent reasons exist for the manner in which the order of Part B of the schedule of listed
items was framed, and I cannot agree with the submission made by Mr MacWilliam that there could be no
possible prejudice to the respondents. If, for example, the order of court had been properly framed and the
supervising attorney and the applicants' attorney came across matters of a private and personal nature, they
would obviously ignore the contents of the particular document and proceed further with their inspection. They
are, after all, both officers of the court. The wide framing of the court order allowed the attachment of every
conceivable document off the second respondent's computer and there was no attempt to put into place a
safeguard for documents of a personal and private nature.
[46] I accordingly find that there are no cogent reasons nor any justification for the attachment of every conceivable
document off the second respondent's computer, and I am accordingly unable to exercise my discretion in
favour of the applicants.
[47] For these reasons I find that it is unnecessary for me to deal with the question as to whether the applicants
had a real or wellfounded apprehension of harm in respect of the items referred to in Part B of the schedule of
listed items, nor is it necessary for me to decide whether the applicants
Page 206 of [2001] 3 All SA 194 (C)
satisfied the requirements that the documents attached could not have been obtained from another source.
[48] The applicants did not establish even prima facie that they have a cause of action in damages against third to
eighth respondents, and it follows that no Anton Piller order should have been granted against any of them.
See Dabelstein's case (supra) at 61AB.
[49] In a rather belated request Mr Hodes sought costs on the attorney and client basis against the applicants. I am
not satisfied that any basis exists for making such an order.
[50] On 16 March 2001, I heard further argument on the future conduct of the interdictory relief and the delivery
relief. I deal with these matters in the order which I make hereafter.