(a)Lotus Notes System;
(b)Emails;
(c) Financial accounting packages;
(d)List of First Applicant's customers and any information relating to them;
(e)Office documentation including quotes, proposals to clients and client agreements or contracts;
(f) Microsoft Excel spreadsheets;
(g)Microsoft Word documents.
Part B
(a)Copies of all the Respondent's computer records over and above the records and programmes listed in Part A
hereof.
(b)Copies of emails and other documents sent to and received from First Respondent's clients."
4.2
Part A related to interim attachment relief, whilst Part B related to Anton Piller relief.
4.3
Mjoli AJ granted interim attachment relief and Anton Piller relief to the applicants, and ordered that the
return date be 8 March 2001.
Page 198 of [2001] 3 All SA 194 (C)
[5]
On the return date, namely 8 March 2001, Mr MacWilliam SC appeared on behalf of the applicants and moved
for confirmation of the rule, sought the interdictory relief envisaged in the notice of motion, as in addition
delivery to the applicants of the documents preserved under the interim attachment order ("the delivery relief').
[6]
Mr Hodes SC, assisted by Mr Myburgh, appeared on behalf of the eight respondents and sought:
6.1 Discharge of the rule; and
6.2 The postponement of the interdictory relief and the delivery relief so as to enable the respondents to be
afforded a proper opportunity of filing answering affidavits. (A short affidavit was tendered by the
respondents.)
[7]
At the commencement of the hearing I pointed out to Mr MacWilliam my strong prima facie view that the
respondents should be given a proper opportunity of preparing their answering affidavits and that the
interdictory relief and the delivery relief should be heard on a later date. I invited counsel to advise me of an
arrangement concluded between them if that was possible, failing which I would make an appropriate order.
[8]
Mr Hodes argued in limine that the rule should be discharged on various grounds. There was some debate
before me as to whether Mr Hodes' argument was a true point in limine, but at the end of the day both parties
were given ample opportunity of addressing me and making full submissions. It is accordingly unnecessary for
me to decide whether Mr Hodes' argument amounted to points in limine or not.
[9]
In regard to the interim attachment order, the respondents' contentions were that:
9.1
There was no evidence in the founding affidavit or in the affidavits tendered in support of the founding
affidavit, that any of the respondents had possession of any of the items in which the applicants claim a
proprietary interest. (In the above connection, Mr Hodes referred me to a passage in the founding
affidavit to the effect that the respondents "must have the evidence listed in Part A of the schedule . . . in
their possession". He argued that whilst it is permissible for a court to draw inferences, it is only
permissible to do so when the inference which is sought to be drawn is consistent with all the proved
facts. Mr Hodes referred me to R v Blom 1939 AD 188 at 202/3). (I make no finding as to whether this is
the applicable test in civil proceedings); and
9.2
There had not been compliance with the trite requirements for an ex parte order, namely 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.
[10] In regard to the Anton Piller relief, the respondents' contentions were that:
10.1 The applicants had failed to specify the documents or things which constitute vital evidence in
substantiation of the cause of action, or to put it another way, that the order was too widely framed;
Page 199 of [2001] 3 All SA 194 (C)
10.2 The applicants had failed to establish a real and well founded apprehension that the said evidence may
be hidden or destroyed or in some manner spirited away by the time the matter comes to trial or to the
stage of discovery;
10.3 The applicants had not discharged the onus of establishing that the evidence could not be obtained from
another source.
[11] In adjudicating this matter, I am in duty bound to have regard only to the applicants' founding papers and not
to have regard to the short affidavit tendered on behalf of the respondents. Furthermore, I am in duty bound
to accept all the allegations contained in the founding papers as being true and correct. See Sun World
International Inc v Unifruco Ltd 1998 (3) SA 151 (C) at 166F.
[12] It is necessary for me to set out certain of the evidence tendered by the applicants, namely:
12.1 On 24 April 1998, the second applicant purchased all the shares in a certain company from certain