Ivan Miltz SC and Doron Block successfully defend Apex Superior in Anton Piller application

On 12 April 2021 the Gauteng Local Division of the High Court, Johannesburg, handed down judgment in an opposed Anton Piller application which had been brought by Hudaco Trading (Pty) Ltd (“Hudaco”) against its newly formed competitor Apex Superior Quality Parts (Pty) Ltd (“Apex”) as well as 3 former employees who had taken up employment with Apex.

The Anton Piller application was concerned with Hudaco’s database of aftermarket parts.  Hudaco alleged that extracts allegedly were being used by Apex to compete unlawfully with Hudaco. The database in question was allegedly being used in breach of certain contractual confidentiality undertakings and alleged infringed Hudaco’s copyright in the database.

Apex and its cited employees were represented by Ivan Miltz SC and Doron Block. The confirmation of the Anton Piller order was challenged on various grounds including but not limited to serious irregularities in the execution of the ex parte order. It was contended by Apex that the order was actually sought to stifle competition between Hudaco and itself and not to preserve evidence at all.

The judgment was handed down by Dippenaar J.  It is instructive in its detail as to how an applicant seeking Anton Piller relief is required to frame the order properly so as to limit the ambit of the search and seizure and thereafter to ensure that the order is meticulously executed.

In handing down judgment, discharging the rule nisi and ordering the applicant to pay the costs on a punitive scale, the Court criticised the extremely broad order and Hudaco’s failure to have obtained authorised keywords for the digital forensic experts to use in their search of the electronic devices.

In this regard the Court stated at [42] – [44] that:

“…considering the wide ambit of the limitation section of the order, it did not specify or identify exactly what information was requested and entailed an impermissible blanket search for documents.

It is trite that a fishing expedition to search for evidence to found a case, is not permitted. In its founding papers, the applicant illustrated that it already had evidence of the first respondent breaching its copyright. In relation to its search for evidence substantiating its claim based on unlawful competition, the procedure can best be described as an impermissible fishing expedition to seek documentation which could establish a claim.

I conclude that the Anton Piller order sought and obtained was not justified by evidence of the existence of specific vital documents. I further conclude that the order did not identify the documentation to be seized with the necessary specificity. It follows that the applicant falls at this hurdle and that the ex parte order must be discharged…”.

As to the need to use authorised keywords for the forensic searches, the Court pointed out, at [53] – [54], that:

“…It was further not disputed that groups and batches of unidentified documents and communications concerning the day to day conducting of the first respondent’s business activities were attached, including first respondent’s confidential and proprietary documents, rather than any of the applicant’s documents as stated in the order. The limitations imposed in the ex parte order were ignored and documentation was taken which exceeded its ambit.

 It does not appear that proper searches were conducted to determine whether or not the contents of the information seized fell within the ambit of the order and no evidence was presented regarding such searches. No evidence was presented that proper identification of relevant documents took place”.

Over and above these issues with the ex parte order itself and in its execution, the Court further stated that due to other “undisputed transgressions of the order, illustrating that it was not meticulously executed” (at [55]) the order was to be set aside.

Such transgressions included the presence of an unauthorised attorney during the execution of the order at Apex’s premises, the taking of photographs by a representative of Hudaco’s attorney whose presence – over and above the fact that these photographs were never inventorised – was also not authorised in the order.  

Considering the above, it is manifest that applicants must give proper consideration to the ambit of the Anton Piller order that they seek (with the aim of limiting the ambit of the search as far as is reasonably possible) and must ensure that the order is meticulously executed.

Failure to do so, will result in the order being set aside on the return day and may also result in a punitive costs order being ordered.

The judgment has been reported as Hudaco Trading (Pty) Ltd v Apex Superior Quality Parts (Pty) Ltd and Others [2021] JOL 50202 (GJ); 2021 JDR 0707 (GJ).  

Related articles

Contact us