Mathias International Ltd and Another v Baillache and Others

• Jurisdiction: South Africa
• Citation: 2015 (2) SA 357 (WCC)

Mathias International Ltd and Another v Baillache and Others
2015 (2) SA 357 (WCC)

2015 (2) SA p357

Citation	2015 (2) SA 357 (WCC)
Case No	23347/09
Court	Western Cape High Court, Cape Town
Judge	Binns-Ward J
Heard	March 8, 2010
Judgment	March 8, 2010
Counsel	J Muller SC (with R Gordon) for the applicants.; R Stelzner SC for the first respondent.

Flynote : Sleutelwoorde

Discovery and inspection — Anton Piller orders — Nature — Court's discretion F to condone non-compliance with requirements — Access to preserved material — Implied undertaking to court.

Headnote : Kopnota

Mathias International Ltd applied ex parte for an order preserving evidence in G the possession of Baillache. It sought the order in connection with an action for damages for lost corporate opportunities that it intended to institute against Baillache and an entity called FOB Trading. The court granted the Anton Piller order and it was executed. On the return day the following issues arose:

(1)

The nature of the Anton Piller procedure.

Held, that the procedure, which had been developed by the courts, constituted H a law of general application within the meaning of s 36 of the Constitution. (Paragraphs [16] and [18] at 367A/B – D and 367G – 368B.)

(2)

The ambit of a court's discretion to condone non-compliance with the requirements of a preservation order. (Baillache complained that the order was too wide and thus ought to be discharged; Mathias asked I the court to trim it, to correct any overbreadth.)

Held, that the court's discretion was limited, and could only be exercised if there had been substantial compliance with the requirements of the procedure. (Paragraphs [34] – [37] at 374B – 375I.)

(3)

After the grant of the preservation order, but before its return date, Mathias applied for access to some of the preserved material. Mathias J

2015 (2) SA p358

A alleged that the material was essential to the operation of its business. The application was granted, and Mathias obtained access. However, ultimately it used some of the material in an application for an interdict against Baillache. In issue was the propriety of it doing so. (The interdict application was heard on the return day of the Anton Piller order, and Baillache applied for the striking-out of the material.)

B Held, that Mathias had given the court an implied undertaking in the access application, to only use the material for the purposes of its business, and that Mathias had breached the undertaking. (Paragraphs [47] – [50] at 379C/D – 381B.)

This raised the question of whether a court could condone such a breach.

C Held, that condonation could be granted, but only in an exceptional case — which this was not. (Paragraph [50] at 381B – C.)

Ultimately the court held that the material had to be struck out; that the Anton Piller order was to be discharged; and that Baillache was to be interdicted from using certain information pertaining to Mathias' business. (Paragraphs [53] and [63] at 381G and 384I – 386E.)

Cases Considered

Annotations D

Case law

Southern Africa

Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and Others 1981 (2) SA 173 (T): referred to E

Audio Vehicle Systems v Whitfield and Another 2007 (1) SA 434 (C): referred to

Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another 1984 (4) SA 149 (T): referred to

Da Silva and Others v CH Chemicals (Pty) Ltd 2008 (6) SA 620 (SCA): referred to F

Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C): referred to

Fedics Group (Pty) Ltd and Another v Matus and Others; Fedics Group (Pty) Ltd and Another v Murphy and Others 1998 (2) SA 617 (C): referred to

Frangos v CorpCapital Ltd and Others 2004 (2) SA 643 (T) ([2004] 2 All SA 146): referred to G

Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) ([1996] 3 All SA 669; [1996] ZASCA 58): referred to

Memory Institute SA CC t/a SA Memory Institute v Hansen and Others 2004 (2) SA 630 (SCA): referred to

Meter Systems Holdings Ltd v Venter and Another 1993 (1) SA 409 (W): referred to H

Petre & Madco (Pty) Ltd t/a T-Chem v Sanderson-Kasner and Others 1984 (3) SA 850 (W): referred to

Philip Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another 1991 (2) SA 720 (A): referred to

President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) (1997 (1) SACR 567; 1997 (6) BCLR 708; [1997] ZACC 4): referred to I

Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385 (SCA): referred to

Protea Technology Ltd v Wainer 1997 (9) BCLR 1225 (W) ([1997] 3 All SA 594): J referred to

2015 (2) SA p359

Roamer Watch Co SA and Another v African Textile Distributors also t/a A MK Patel Wholesale Merchants and Direct Importers 1980 (2) SA 254 (W): referred to

Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, and Another; Maphanga v Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg, and Others 1995 (4) SA 1 (A) ([1995] 2 All SA 300; [1995] ZASCA 49): dictum at 15H applied B

Sun World International Inc v Unifruco Ltd 1998 (3) SA 151 (C): referred to

The MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and Others 1999 (3) SA 500 (C): referred to

Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) ([1986] ZASCA 3): referred to

Van Castricum v Theunissen and Another 1993 (2) SA 726 (T): C referred to

Van Niekerk and Another v Van Niekerk and Another 2008 (1) SA 76 (SCA): referred to.

Australia

Metso Minerals v Kalra [2007] FCA 2093: referred to

Pathways Employment Services v West [2004] NSWSC 903: referred to D

Visy Board Pty Ltd v D'Souza (No 3) [2008] VSC 572: referred to.

England

Anton Piller KG v Manufacturing Processes Ltd 1976 RPC 719 (CA) (1976 Ch 55; [1976] 1 All ER 779): referred to

Crest Homes plc v Marks [1987] 1 AC 829 (HL) ([1987] 2 All ER 1074): E considered

Lock International plc v Beswick [1989] 3 All ER 373 (Ch) ([1989] 1 WLR 1268): referred to.

European Court of Human Rights

Chappell v United Kingdom [1990] 12 EHRR 1: considered. F

India

Taj Television v Mahalakshmi Communications Suit 242 of 2004: referred to.

Case Information

J Muller SC (with R Gordon) for the applicants.

R Stelzner SC for the first respondent. G

A judgment concerning whether to confirm or discharge an Anton Piller order. The order is in para [63].

Order

(i)

The Anton Piller order made on 5 November 2009 is discharged H and, subject to the provisions of para (ii) of this order, the sheriff is directed to return to the first respondent the material seized in the execution of the provisional order.

(ii)

Notwithstanding the discharge of the Anton Piller order, the sheriff is authorised to release to the applicants' attorneys of record those of I the items seized in the execution of the Anton Piller order which are listed in annexure A to this judgment.

(iii)

It is recorded that the discharge of the Anton Piller order shall not affect the applicants' entitlement to retain the information obtained by them in terms of the order made by this court on 15 December 2009 in the application brought by them under case No 25726/09, J

2015 (2) SA p360

A subject thereto that they shall not use such information for any purpose other than for which it was sought in such application, without the leave of the court first being sought and obtained.

(iv)

The costs incurred by the first respondent in opposing the confirmation of the Anton Piller order are to be paid by the applicants, B liability in respect thereof being joint and several, the one paying the other being absolved.

(v)

The following paragraphs of the applicants' replying affidavit (deposed to by Peter Houlker) are struck out, with costs:

Paragraphs 7 – 8, 11, 13 – 16, 18 – 34, 36 – 40, 43 – 46, 49 – 58, 60 – 81, 91.3 and 132.6.

(vi)

C The first respondent is interdicted and restrained from utilising, copying, distributing, or in any way disseminating any of the applicants' lists setting out the names of the applicants' customers, the customers' contact details and/or the customers' requirements, or those setting out the names of the applicants' suppliers, the suppliers' contact details and/or the suppliers' requirements.

(vii)

D The first respondent is ordered to pay the applicants' costs of suit in the interdict application, including the costs of two counsel where such were employed.

Judgment

Binns-Ward J:

E [1] The applicants are a New Zealand-based company which trades internationally in frozen food products, especially meat, fish and vegetables, and its South African subsidiary.

[2] At all times material to the matters in issue the first respondent was F an executive director of the South African subsidiary and managed the applicants' business in this country.

[3] The second respondent is cited as FOB Trading, allegedly a firm as contemplated in terms of rule 14 of the Uniform Rules of Court. The G evidence established the existence of a business by the name FOB which had been established in Argentina by two former employees of the first applicant at its South American branch. For present purposes it can be accepted that no distinction falls to be drawn between FOB, the South American business, and FOB, the alleged Cape Town firm. I shall refer to them indiscriminately as 'the second respondent'. [1] It is common ground H that the name of the second respondent is an acronym derived from the surnames of the two former employees in Argentina, Esteban Furlong and Tomas Ortuño, and that of the first respondent, Monique Baillache. Indeed, one of the matters that has to be determined in this judgment is

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