STT Sales (Pty) Ltd v Fourie and Others

• Jurisdiction: South Africa
• Judge: Lamont J
• Judgment Date: 08 September 2010
• Docket Number: 09/5042
• Hearing Date: 10 August 2010
• Counsel: LJ van der Merwe SC for the applicant. TW Beckerling SC (with D Williams) for the respondents.
• Court: South Gauteng High Court, Johannesburg

STT Sales (Pty) Ltd v Fourie and Others
2010 (6) SA 272 (GSJ)

2010 (6) SA p272

Citation	2010 (6) SA 272 (GSJ)
Case No	09/5042
Court	South Gauteng High Court, Johannesburg
Judge	Lamont J
Heard	August 10, 2010
Judgment	September 8, 2010
Counsel	LJ van der Merwe SC for the applicant.; TW Beckerling SC (with D Williams) for the respondents.

Flynote : Sleutelwoorde F

G Discovery and inspection — Discovery — Application proceedings — Discovery granted only in exceptional circumstances and then only once all affidavits filed — Discovery not designed for obtaining of evidence for incorporation into affidavits — Application for discovery of documents (taken by sheriff in execution of Anton Piller order granted at applicant's behest) in order to bolster applicant's founding affidavit in main application — No exceptional circumstances justifying deviation from general rule shown — Discovery H application dismissed — Uniform Rules of Court, rule 35(13).

Trade and competition — Unlawful competition — Confidential information used by ex-employees to copy employer's processes and plant in order to make product identical to that made by employer — Conduct plainly unlawful — Interdict pendent lite granted.

Headnote : Kopnota

I An order directing discovery will only in exceptional circumstances be made in motion proceedings, and then only after the legal issues have been established, ie once all the affidavits have been filed. Discovery was designed as a tool to identify factual issues, and not as a weapon to be used in preliminary skirmishes between the parties. (Paragraphs [13] and [15] - [17] at 275D - I and 276B - G.) J

2010 (6) SA p273

The applicant sought discovery of certain documents that the sheriff had seized A pursuant to an Anton Piller order granted at applicant's behest. The applicant had no proprietary interest in the documents and indicated that the purpose of the discovery application was to obtain evidence that it wished to use to supplement its founding affidavit in the main application. The court, citing the principles outlined above, dismissed the application for discovery, pointing out that the applicant had chosen to commence B motion proceedings, well knowing that it had insufficient evidence, and could be heard to complain that its choice was causing it prejudice that had to be relieved, notwithstanding the fact that general principles prohibited such relief. (Paragraph [18] at 276H - I.)

The applicant sought interlocutory relief in the form of a series of interim C interdicts designed to prevent the respondents, of whom two were its ex-employees, from operating, pending final relief, a plant that was an exact copy of that of the applicant to manufacture an identical product, using identical processes and formulae. The court found that the conduct of the respondents was, if established in the main proceedings, plainly unlawful, and granted the interim relief requested. (Paragraphs [40] - [42] at 280A - D.) D

Cases Considered

Annotations

Reported cases

Saunders Valve Co Ltd v Insamcor (Pty) Ltd 1985 (1) SA 146 (T): dictum at 149F - I applied

Premier Freight (Pty) Ltd v Breathetex Corporation (Pty) Ltd 2003 (6) SA 190 (SE): dictum at 196A - B applied E

The MV Urgup: Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and Others 1999 (3) SA 500 (C): dictum at 513I applied.

Rules Considered

Rules of court

The Uniform Rules of Court, rule 35: see The Supreme Court Act and the Magistrates' Courts Act and Rules (Juta 2009) at 56. F

Case Information

Application for a discovery order and certain ancillary relief. The facts appear from the reasons for judgment.

LJ van der Merwe SC for the applicant.

TW Beckerling SC (with D Williams) for the respondents. G

Cur adv vult.

Postea (September 8).

Judgment

Lamont J: H

[1] On 31 March 2009 the applicant instituted proceedings against the first, second, third and fourth respondents. In those proceedings the applicant sought urgently what is colloquially known as an Anton Piller order, and also, in Part B of the proceedings, a series of interdicts essentially directed to interdict the respondents from using or dealing I with a manufacturing plant that was claimed to be a copy of the applicant's plant, and selling or disposing of waterproofing material which was manufactured using certain of the applicant's formulae.

[2] On 31 March 2009 urgent relief was afforded to the applicant. That order provided for search, seizure and attachment of a variety of J

2010 (6) SA p274

Lamont J

A documents, authorised the inspection and measuring of the plant and machinery, and the photographing of the machinery. The sheriff was to make an inventory.

[3] The order was executed. A variety of measurements and photographs B were made and documents attached.

[4] On 7 May 2009 the applicant brought an application seeking permission to make copies of documents attached and removed by the sheriff, as also the right to make copies of photographs which were taken.

[5] On 19 August 2009 Gildenhuys J handed down a judgment dismissing C the application. During the course of the proceedings the documents in which the applicant had a proprietary interest were returned to the applicant. The application dealt only with those documents and items in respect of which the applicant had no proprietary interest.

[6] It was held that, inasmuch as the applicant was not the owner of the D documents, and, since the object of an Anton Piller order is not to sanction a search for evidence that may or may not exist, and that may or may not go to found a cause of action, but rather to preserve evidence which was known to exist, the applicant had no right of discovery of the documents at that time.

E [7] During the course of the judgment Gildenhuys J directed the applicant's attention to the fact that it might be able to obtain the documentation by way of discovery.

[8] On 24 November 2009 the applicant instituted proceedings against the respondents, seeking discovery of a variety of documents in the F sheriff's possession and held by the sheriff pursuant to the Anton Piller order, as well as the right to inspect and examine the measuring sketches, notes and photographs in the possession of the sheriff, as also a right of inspection and examination of the manufacturing machinery and equipment in the possession of the respondents. This application will be G referred to as the discovery application.

[9] On 1 December 2009 the applicant instituted proceedings, seeking interlocutory relief in the form of a series of interdicts directed to...