Lourenco and Others v Ferela (Pty) Ltd and Others (No 1)

• Judge: Southwood J
• Judgment Date: 10 November 1997
• Citation: 1998 (3) SA 281 (T)
• Docket Number: 25793/97
• Counsel: P Le R Van Wyk (with him CJ Van Coller) for the applicants L Bowman (with him Brahm Du Plessis and AP Bezuidenhout) for the respondents
• Court: Transvaal Provincial Division

Southwood J:

On 31 October 1997 the applicants sought and were granted in camera and without notice to the respondents the following relief: E

'1.

That this application be heard in camera.

2.

That publication of this order is prohibited until such time as this order has been executed.

3.

That the various respondents are interdicted from contacting each other and/or other persons who may have access to the records, accounting records and/or computer records more fully described F hereinafter from the time that such respondents may come to know about this order until after execution thereof.

4.

That a rule nisi do hereby issue with return date 2 December 1997 at 10:00 when all interested parties must show cause why the following should not be made a final order of Court: G

4.1

That the sheriffs and/or their deputies for the areas in which the various respondents are be hereby authorised to

4.1.1

enter the premises of the various respondents and to serve a copy of this order on such respondents;

4.1.2

to demand from such respondents that the documents and records as set out herein be H handed over to such sheriff and/or their deputy;

4.1.3

to search for and seize the documents more fully described hereinafter;

4.1.4

the deputy sheriff is authorised to hire an excavator in order to excavate the documents buried at the premises of 16th respondent, 187 Hans Strydom Avenue, North Ridge, I Johannesburg, alternatively take such steps as he may reasonably deem meet to excavate such documents;

4.1.5

to demand from any of the respondents and/or their representatives all computer records as set out more J

Southwood J

fully hereinafter and that such respondents be ordered to supply him with such passwords A as may be necessary in order for the sheriff and/or his deputy to gain access to the various computers;

4.1.6

to authorise him to copy such computer records in such fashion as he may deem meet; B

4.1.7

to authorise the applicants' attorney of record in collaboration with the deputy sheriff to appoint such other persons to assist the deputy sheriff in their tasks as aforesaid as they may deem meet;

4.1.8

to authorise the deputy sheriff after removing such records and/or documents as set out C more fully hereinafter to hand over same to the applicants' attorney of record who in turn will be entitled to hand over such documents to a person/s for the purposes of copying such documents;

4.1.9

to direct the applicants' attorney of record, after such copying process, to hand the said D documents and/or records described more fully hereinafter to the deputy sheriff who shall hand same back to the respondents.

4.2

In the context of this order the books and documents shall be supplied for the period 1 March E 1989 to date and the books and documents shall be construed as to mean -

4.2.1

all the audited financial statements of first to 16th respondents and 26th to 29th respondents;

4.2.2

copies of the auditors' working papers in relation to the audited financial statements alluded to in para 4.2.1 above; F

4.2.3

all accounting records which relate to the sales, purchases and other trading stock transactions including but not limited to all records which may be stored on a computer or similar device;

4.2.4

all bank account records of the first to 16th respondents and the 26th to 29th G respondents;

4.2.5

copies of all the banking records relating to the account which has been styled the "rebate and kickbacks account" and proof of the division thereof annually and proof of payment to the various respondents in terms of such division; H

4.2.6

access to all the files and documents pertaining to the investigation by the Receiver of Revenue and all records in possession of the 19th respondent in connection therewith;

4.2.7

all computer and normal records regarding stock, financial transactions and interest paid I on such transaction;

4.2.8

the minute book, statutes and articles of association of the first to 15th respondents and the 26th to 29th respondents; J

Southwood J

4.2.9

the register of shareholders and directors and declarations of directors' interest in contracts A interest in contracts in respect of first to 15th respondents and 26th to 29th respondents;

4.2.10

all overhead expenditure, accounts, vouchers and source documents; B

4.2.11

wages and salary registers;

4.2.12

records pertaining to the suppliers including overseas suppliers;

4.2.13

all records relating to all interest paid and the corresponding liabilities in respect of which such interest was paid; C

4.2.14

journal entries and credit notes in respect of the first to 16th and 26th to 29th respondents;

4.2.15

all stock sheets in respect of obsolete, damaged or slow-moving stock written off or removed from the companies' premises; D

4.2.16

all records relating to customs and excise duties relating to the importation or exportation of any stock and/or other goods by first to 16th and 26th to 29th respondents;

4.2.17

agreements between directors and suppliers, customers, banks and finance institutions including but not limited to 24th respondent; E

4.2.18

records to all overseas accounts held by any of first to 15th respondents, 26th to 29 respondents and/or any company in which 15th respondent may have an interest; F

4.2.19

the sales records of damaged, obsolete slow-moving stock through Set-Centre;

4.2.20

the stock reports and working documents relating thereto as well as any other books or documents which may be in possession of 18th respondent relating to first to 15th G respondents or 26th to 29th respondents or any other company in which 15th respondent may have an interest.

4.3

That the 16th respondent be ordered to pay the costs hereof including the reasonable costs incurred as a result of this order and the execution thereof. H

4.4

That the applicants be ordered to institute action against any of the respondents as they may deem meet within a period of 120 days hereof failing which all copies of documents seized in respect of this order must be returned to the various respondents and the applicants in such an I event be ordered to pay the costs incurred by any of the respondents on an attorney and own client scale on which basis and further in which event the applicant be ordered to pay such damages suffered by any of the respondents in respect of the granting of this order, the quantum of which as the respondents may prove in any competent court. J

Southwood J

4.5

That this order be executed during normal business hours and in such a way as not to A unreasonably disrupt the business of the various respondents.

5.

That prayers 1, 2, 3 and 4.1 to 4.2 operate as an interim order pending the outcome hereof.'

The Respondents Became Aware of This Order for the First Time at about 10:00 on 6 November 1997 When B Execution of the Order Commenced. I Was Told from the Bar that Nine Teams Were Involved in the Execution of the Order. Some of the Respondents Sought Legal Advice and by about 14:00 on 6 November 1997 the Respondents Had Instructed an Attorney Who Had Retained Counsel. Shortly Afterwards the Respondents' Attorney and Counsel C Approached the Court on an Urgent Basis. at that Stage the Applicants Were Also Represented by an Attorney and by Senior and Junior Counsel, the Applicants' Attorneys Having Been Advised that the Respondents Intended to Approach the Court for Relief.

The respondents did not have a notice of motion or any affidavits when they approached the Court but the D respondents' senior counsel, Mr Bowman, indicated that the respondents' attitude was that the above orders should not have been granted at all and that in any event the orders granted should not have been granted in the form in which they were granted.

The applicants' senior counsel, Mr Van Wyk, demanded that the respondents formulate the relief sought and E present it to the applicants in the form of a notice of motion.

After discussion with the legal representatives - both the applicants and the respondents represented by their attorneys and senior and junior counsel - the matter was adjourned to 14:00 on 7 November 1997 to enable the parties to exchange affidavits. F

The order made on 6 November 1997 reads as follows:

'It is ordered that it is noted that Advocates Bowman and Du Plessis appeared on behalf of the respondents who wish to set aside the order granted by Hartzenberg J on 31 October 1997. No papers were filed but after negotiations between the legal representatives the following orders were made by agreement at 16:10. G

1.

The application to set aside the order granted on 31 October 1997 is postponed to 14:00 on Friday, 7 November 1997, and the costs of today are reserved.

2.

Pending the finalisation of this application the order granted on 31 October 1997 is qualified in the H following way:

2.1

Ad para 4.1.7:

By the addition of the following:

"Provided that any such person so appointed is to act at all times under the supervision and I control of the applicants' attorney of record or a qualified member of his staff."

2.2

Ad para 4.1.8:

By substituting the following for the existing para 4.1.8:

"To authorise the deputy sheriff, after removing such records and documents as set out hereinafter, to hand over same to the deputy sheriff North Riding who will keep same under his custody and control pending the outcome of the J

Southwood J

hearing on 7 November 1997 and who is directed not to permit access to the said documents by A any other person."

2.3

Ad para 4.1.9:

"By suspending the operation of the paragraph in toto." B

...