Sun World International Inc v Unifruco Ltd

• Jurisdiction: South Africa
• Citation: 1998 (3) SA 151 (C)

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

1998 (3) SA p151

Citation	1998 (3) SA 151 (C)
Case No	9589/97
Court	Cape Provincial Division
Judge	van Reenen J
Heard	October 21, 1997; October 22, 1997
Judgment	February 18, 1998
Counsel	ABS Franklin for the applicant; PB Hodes (with him RO Petersen) for the respondent

Flynote : Sleutelwoorde

Discovery and inspection — Anton Piller orders — Nature and scope of — Anton Piller order not justified merely because recalcitrance anticipated on part of respondent as regards discovery and inspection in future — Applicant needing to show that documents seized were of vital nature in sense of being of great importance to substantiate its cause of G action or that non-availability would defeat administration of justice — Although Anton Piller order having effect of discovery, discovery of documents by no means co-extensive with disclosure of their contents and concepts of discovery and inspection should be kept apart — Order that applicant's attorneys and accountants permitted to inspect items in sheriff's possession contrary to practice in Cape Provincial Division — Quaere: whether evidential burden on H opposed return day of Anton Piller order is prima facie proof.

Discovery and inspection — Anton Piller orders — Order that applicant's attorneys and accountants permitted to insepect items in sheriff's possession in conjunction with Anton Piller order — Necessary for application to show that I requirements for madatory interdict existed and that relief sought would be defeated if notice thereof given to respondent — In absence of notice interdictory relief can only be granted in form of rule nisi

Headnote : Kopnota

The applicant, averring that the respondent, in an endeavour to reduce its liability in respect of royalties and lost marketing fees as a result of the sale J

1998 (3) SA p152

and export of certain grapes, of which the applicant was the proprietor of a plant breeders' right in terms of the A provisions of the Plant Breeders' Rights Act 15 of 1976 (the Act), had embarked upon a scheme to reflect its export figures inaccurately by incorrectly packing and marketing certain of its grapes, had applied ex parte for an Anton Piller order. The Anton Piller order, inter alia, provided that, for a specified purpose, the applicant's attorneys and accountants, in the presence of the supervising attorney, were permitted to inspect the items in the B sheriff's possession.

It was common cause that it was not the applicant's case that it had any apprehension that the respondent would destroy any evidence and the applicant did not make out a case that the respondent would hide or spirit away C evidence should it become aware of the applicant's intention to institute proceedings for the recovery of its claim against the respondent. It was the applicant's contention that there was no guarantee that the respondent would make discovery of the correct figures or documents that would enable it to make accurate calculation of the quantum of any damages suffered by the applicant.

On the extended return day of the rule nisi granted together with the Anton Piller order, the respondent argued D that (1) the applicant had failed to divulge material information in its founding papers, in that the applicant had failed to mention in its founding papers that the Act had been amended during the period for which it alleged the respondent had infringed its plant breeders' right, and prior to the amendment the applicant would not have had a claim against the respondent; (2) the applicant had failed to show the existence of a real and well-founded E apprehension that the respondent would hide, destroy or in some manner spirit away evidence before discovery was made or the trial commenced; (3) the order sought and granted was wider than was necessary to protect the applicant's interests; and (4) the order granted violated the respondent's constitutional rights.

The Court examined the specimen order provided for in Practice Note 18 of the Cape Provincial Division, with F particular reference to the provision for a rule nisi to be issued when granting the Anton Piller order. The Court noted that the notion of a rule nisi that operated as a temporary interdict was not easily reconcilable with an Anton Piller order such as the one in casu. The Anton Piller relief was immediate and the effect thereof adverse as soon as the order was implemented, while the rule nisi embodied in para 1(a) of the specimen order appeared G to be merely a means of affording a respondent the opportunity of contesting the making final of the order already granted. (At 161F/G--H/I.)

The Court commented that the Practice Note should be amended so as to reflect more accurately the true nature of the remedies of a respondent against whom an Anton Piller order had been granted in an ex parte application. H That could be done by amplifying the notice to the respondent by informing the respondent of the right to have the order reconsidered as provided by Rule 6(12)(c) of the Uniform Rules of Court or to contest the making final of the order; by reformulating para 1(a) of the specimen order to call upon a respondent to exercise the aforementioned rights by a specified date and to impose a regime upon the parties for the filing of answering affidavits and replying affidavits, if any. (At 161I/J--162B.) I

Held, that the impression conveyed by the applicant in its founding affidavits as regards the nature and extent of the protection enjoyed by it was clearly erroneous. In its founding papers the applicant merely quoted the relevant provisions of the Act in their amended form and failed to make any clear reference to the fact that the Act had been materially amended. It was accordingly safe to assume that the Judge who had granted the Anton Piller J

1998 (3) SA p153

order had not been advised of the nature and impact of the changes brought about by the amendments to the A Act. In the premises the applicant had failed to make a full disclosure of a material fact to the Court. (At 165E/F--F, 165G/H--H/I and 166C/D--E.)

Held, further, that in view of the detailed provisions of Rule 35 of the Uniform Rules for the obtaining of discovery and inspection, as well as that discovery may have been obtained with the leave of a Judge before the B close of pleadings, there appeared to have been little justification for the applicant to have made use of the Anton Piller procedure with its enormous potential for harm merely because it had anticipated recalcitrance on the part of the respondent as regards discovery and inspection in the future. Accordingly the applicant had not adduced prima facie proof of a well-founded apprehension that the respondent would hide or otherwise spirit C away relevant evidence. (At 167D--F.)

Held, further, that the applicant had not succeeded in showing that the documents that had been seized were of a vital nature in the sense of being of great importance to substantiate its cause of action or that their non-availability would have defeated the administration of justice. The only relevance of the seized documents was that they D would have enabled the applicant more accurately to compute the quantum of its claim against the respondent. The applicant was in possession of all the facts necessary for the simple arithmetic calculation of its damages and nothing precluded it from amending its particulars of claim to bring the quantum of the claim in line with any documentation discovered in terms of Rule 35. (At 169G/H--H/I, 170A/B--B and 171A--B.) E

Held, further, that, although an Anton Piller order had the effect of discovery, discovery of documents was by no means co-extensive with the disclosure of their contents, because of the possibility that disputed issues such as relevance, privilege etc might have arisen, and the concepts of discovery and inspection should be kept apart. Accordingly the order that the applicant's attorneys and accountants, in the presence of the supervising attorney, F were permitted to inspect the items in the sheriff's possession was contrary to the practice in the Cape Provincial Division. (At 172H--173D.)

Held, further, that, in order for the applicant to obtain a mandatory interdict that the applicant's attorneys and accountants, in the presence of the supervising attorney, in conjunction with an Anton Piller order, were permitted to inspect the items in the sheriff's possession, it had to show that the requirements therefor existed and that the G relief sought would be defeated if notice thereof were to have been given to the respondent. Due to the absence of notice to the respondent, the interdictory relief sought could only have been granted in the form of a rule nisi. (At 173D--G.)

Held, further, that the terms of an Anton Piller order should not be so wide as to give the applicant access to H documents to which the evidence did not show her or him to be entitled. This accords with the practice of South African Courts to limit relief granted ex parte to what was absolutely necessary to safeguard a respondent in the interim against irreparable harm. (At 174D--E.)

Held, further, that, as the Court had come to the conclusion that the Anton Piller order and the rule nisi should be I discharged, it was unnecessary to decide whether the order granted had violated the respondent's constitutional rights. (At 174H/I--I.)

Quaere: whether, although the evidential burden for proving the three prerequisites for the granting of an Anton Piller order was prima facie proof where the application was brought ex parte, the same evidential criterion applied on the opposed return day of an Anton Piller order. (At 162H/I--163C/D.) J

1998 (3) SA p154

Cases Considered

Annotations

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