Enterprise Connection Cape (Pty) Ltd and another v Clarotech Consultants and others
[2001] 3 All SA 194 (C)
Division:
Cape of Good Hope Provincial Division
Date:
19 March 2001
Case No:
1547/01
Before:
Pincus AJ
Sourced by:
C Webster and AD Maher
Summarised by:
D Harris
. Editor's Summary . Cases Referred to . Judgment .
[1] Anton Piller orders Nature of relief Requirements.
[2] Civil procedure Interim attachment relief Application for ex parte order Requirements Applicants must allege and
prove that they have an existing real or personal right in the document; that the respondents have the documents in
their possession or that there are
Page 195 of [2001] 3 All SA 194 (C)
good grounds for believing that they did; that the only way in which the document could be preserved or irreparable harm
could be prevented is by the interim attachment thereof; and that the court order would be defeated if notice were given
to respondents.
[3] Interim attachment relief Application for ex parte order Requirements Applicants must allege and prove that they
have an existing real or personal right in the document; that the respondents have the documents in their possession or
that there are good grounds for believing that they did; that the only way in which the document could be preserved or
irreparable harm could be prevented is by the interim attachment thereof; and that the court order would be defeated if
notice were given to respondents.
Editor's Summary
The Applicants sought Anton Piller relief as well as interim attachment relief in the present matter. When the matter
appeared before the court a quo, the judge issued a rule nisi in Applicants' favour. In response, the Respondents
argued that the rule should be discharged on the following grounds. Firstly, with regard to the interim attachment
relief, it was contended that there was no evidence in any of the Applicants' affidavits that any of the Respondents
had possession of the items in which the Applicants claimed a proprietary interest. In addition, it was argued that
there had not been compliance with the requirements for an ex parte order. These requirements included an
allegation that the items in question would be irreparably harmed if not attached pendente lite and an allegation
that the court order would be defeated if notice was given to the Respondents. With regard to the Anton Piller
relief, the Respondents contended that the Applicants had failed to specify the documents which constituted vital
evidence. In other words, the order was too widely framed. It was also argued that the Applicants had failed to
establish a real and wellfounded apprehension that the evidence might be hidden or destroyed by the time the
matter went to trial. Finally, it was argued that the Applicants had not discharged the onus of establishing that the
evidence could not be obtained from another source.
Held The interim attachment order formed the first issue addressed by the Court. It was emphasised that an
order for the interim attachment of property is not a true Anton Piller order. To obtain such an order on an ex parte
basis, the Applicants had to allege and prove that they had an existing real or personal right in the document; that
the Respondents had the documents in their possession or that there were good grounds for believing that they
did; that the only way in which the document could be preserved or irreparable harm could be prevented was by
the interim attachment thereof; and that the��court order would be defeated if notice was given to Respondents.
The Court held that it was satisfied that the Applicants had established prima facie that the First Respondent had
possession of a computer system, as the Respondents were soliciting and servicing Applicants' customers. This
meant that they must have taken copies of the system when they left the First Applicant's employ. It was pointed
out that a court could infer a real or wellgrounded apprehension of harm from unlawful conduct on the part of a
respondent. In the present instance, the Court was satisfied that such unlawful conduct had been established on a
prima facie basis. In the premises, the Applicants were entitled to the interim attachment order in respect of the said
computer system. This was not the case with respect to the remaining items listed in the schedule pertaining to the
application for the interim attachment order. In that regard,
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the Applicants had not established even on a prima facie basis, that any of the Respondents were in possession of
the other items. The rule was accordingly discharged in respect of all the remaining documents in the relevant
schedule.
The Anton Piller relief was the next issue addressed by the Court. The Court explained that Anton Piller orders
are orders granted for the attachment of documents or items to which no right is claimed, except that they should
be preserved for the purpose of being produced as evidence at trial.