| 1. |
These practises apply when an order which is sought
ex parte involves a search for a movable object or the attachment thereof
in order to preserve evidence as is meant in Shoba v Officer Commanding
1995 (4) SA 1 (A) or if the item is not identified in the papers, i.e.
if identification is dependent upon a pointing out which is still to
be made. |
| 2. |
Such an application must stand on its own and not form
part of an application in which other relief is claimed. Duplication
of costs is to be minimised by incorporating evidence in one application
by reference in any other application. |
| 3. |
When the applicant wishes the matter to be heard in
camera: |
| |
3.1 |
the applicant may, without being obliged to do so, prove the reason
why such a hearing is necessary in a separate affidavit. If a separate
affidavit is employed and a hearing in camera is refused without a party
or the judge having placed reliance on the contents of the application
itself, the applicant may withdraw and remove the Anton Piller application; |
| |
3.2 |
a certificate from counsel in support of a hearing in camera is
not necessary; |
| |
3.3 |
all steps must be taken as if the application is being set
down on the motion court roll by use of the ordinary forms and in the
ordinary
manner except that the notice of set down and application are handed
to the clerk of the senior judge on motion court duty for purposes of
safekeeping and maintaining secrecy all in accordance with the directions
of the senior judge. |
| 4. |
A notice which accords with annexure A hereto must
be handed to the person on whom the order is to be served prior to any
execution of
the order. |
| 5.1 |
Annexure B represents a model order which applies to
relief along Anton Piller lines. It may be adapted according to circumstances
but the judge’s attention must be drawn to deviations. |
| 5.2 |
Deviations from annexure B must be limited to what
is necessary and must heed the following guidelines: |
| |
5.2.1 |
Unless the procedure is limited in case law, undertakings to the court
must be employed to counteract injustice and avoidable inconvenience
to the respondent. |
| |
5.2.2 |
The order must be justifiable in terms of South African law. |
| |
5.2.3 |
It must be borne in mind that it is of the essence of an Anton
Piller type order that it results in some immediate interference with
the respondent without any prior notice (even if a rule nisi pattern
of order were to be used). Immediate operation must be limited to what
can be fully justified by urgency or other need for breach of the audi
alteram partem principle. |
| |
5.2.4 |
Relief which can not be so justified must be dealt with in a
separate part of the notice of motion (and where necessary of the court
order) so that the respondent has a proper opportunity to oppose such
relief. Immediate preserving of evidence does not imply a need to allow
the making of copies or other early discovery without the other party
having a chance to be heard. |
| |
| ANNEXURE A |
| 1. |
The order being served on you requires you to allow the
persons named therein to enter the premises described in this order and
to search for, examine and remove or copy the articles specified in this
order. You are also required to point out and hand over any such item
to the sheriff. Particulars are stated in the order. |
| 2.1 |
When this notice is handed to you, you are entitled, if you are an
employee of the respondent or in charge of the premises, to contact
the respondent or a more senior officer of the respondent. You are
entitled to the attendance and advice of such senior person, the respondent
or an attorney provided such person arrives without delay and not later
than one hour after the handing over of this notice. |
| 2.2 |
Until the attorney, the respondent or such other officer
arrives or until the time has passed for him or her to arrive, you need
not comply with any part of this order, except that you must allow the
applicant’s attorney, the sheriff and the other persons named in
the order to enter the premises and to take such steps as, in the opinion
of that attorney, are reasonably necessary to prevent prejudice to the
further execution of the order. |
| 3. |
You are further entitled to have the sheriff and the applicant’s
attorney explains to you what this notice and the court order mean. |
| 4. |
You may be punished for contempt of court if you, inter
alia, |
| |
4.1 |
obstruct the sheriff unlawfully in the execution of this order;
or |
| |
4.2 |
wilfully disobey this order; or |
| |
4.3 |
remove or intentionally cause harm to any item about to be attached
or removed in terms of this order, until the attachment is set aside
by the Court or is
lifted on instruction from the applicant. |
| |
Click
here to Download Annexure A
PDF format. |
| |
Click
here to Download Annexure A in
MS Word format |
| |
|
| ANNEXURE B |
| Having heard counsel for the applicant and having read
the papers filed of record, and on the basis that the applicant undertakes
to this court that - |
| |
1. |
this order will not be executed outside the hours between 08h00
and 18h00 on a weekday; |
| |
2. |
applicant will prevent the disclosure of any information gained
during the execution of this order to any party except in the course
of obtaining legal
advice or pursuing litigation against the respondent; |
| |
3. |
applicant will compensate the respondent for any damage caused to
the respondent
by anyone exceeding the terms of this order; |
| |
4. |
applicant will compensate the respondent for any damage caused to
the respondent by reason of the execution of this order should this order
subsequently be set
aside, |
| |
|
|
| IT IS ORDERED: |
| 1. |
That the respondent and any other adult person
in charge of the premises of the respondent at New Road, Delmas grant
the sheriff of the above
Honourable Court, applicant’s manager (Mr XY Zuma), attorney
AB Collins (“applicant’s attorney”) and a computer
operator nominated by applicant access to the said premises for the
purpose of |
| |
1.1 |
searching the premises for the purpose of enabling any of those
persons to identify and point out to the sheriff originals or copies
of or
extracts from applicant’s recipes and formulae for the manufacture
of AZ toys; |
| |
1.2 |
examining any item for the purpose of identifying it and deciding
whether it is of the nature mentioned in the preceding subparagraph; |
| |
1.3 |
searching the premises for the purposes of finding any computer
disc containing
any of the items referred to above. |
| 2. |
That the respondent forthwith discloses passwords and procedures required
for effective access to the computer for the purpose of searching on
the computer and making a disc copy, or, if that is not possible, a print
out of computer documents containing information of the nature which
would be expected in a document mentioned in paragraph 1.1 above. |
| 3. |
|
|
| |
3.1 |
That the respondent permit the sheriff to attach and to remove
any document pointed out by a person mentioned in paragraph 1 as being
a document covered by paragraph 1. |
| |
3.2 |
That, subject to paragraph 5.2 hereof, the sheriff is authorised
to attach any document which is pointed out by any of the aforesaid persons
and is directed to remove any attached document in respect of which the
applicant or the applicant’s attorney does not give a different
instruction. The sheriff is directed to keep each removed item in his
custody until the applicant authorises its release to the respondent
or this Court directs otherwise. |
| 4. |
That until completion of the search authorised in the
preceding paragraphs the respondent may not access any computer or any
area where
documents of the class mentioned in paragraph 1.1 may be present except
with the leave of the applicant’s attorney or to make telephone
calls or send an electronic message to obtain the attendance and advice
mentioned in the notice which is handed over immediately prior to execution
of this order. |
| 5. |
The sheriff is directed, before this order and this application is
served or executed, to - |
| |
(a) |
hand to the respondent or the other person found in charge of the
said premises a copy of a notice which accords with annexure A of the
Practice Manual; and |
| |
(b) |
to explain paragraphs 2, 3 and 4 thereof; and |
| |
(c) |
to inform those persons the following: |
| |
5.1 |
That any interested party may apply to this Court on not less than
twenty four (24) hours’ notice to the offices of the applicant’s
attorney for a variation or setting aside of this order, the court’s
practices and rules applying unless the court directs otherwise. |
| |
5.2 |
That the respondent is entitled to make a copy of any document
which the sheriff intends to remove unless the sheriff declares that
the time involved makes the procedure impractical and the sheriff either
does not remove the relevant item or removes it in a container sealed
by him and which the sheriff may not open except to give to effect this
order or to any further direction from the Court. |
| |
5.3 |
That the respondent or his representative is entitled to inspect
items in the sheriff’s possession for the purpose of satisfying
themselves that the inventory is correct. |
| 6. |
The sheriff is ordered to immediately make a detailed
inventory of all items attached and to provide the Registrar of this
court, the applicant’s attorney, and the respondent with a clear
copy thereof. |
| 7. |
That unless a different direction is obtained from the
Court, applicant and applicant’s attorney will, two days after
this order is executed, become entitled to inspect any of the removed
items in order to assess whether it provides evidence relevant to the
present application or to the further legal proceedings envisaged in
the application. |
| 8. |
That the sheriff is ordered to inform the respondent that
the execution of this order does not dispose of all the relief sought
by the applicant and to simultaneously serve the notice of motion and
explain the nature and exigency thereof. |
| 9. |
The costs of this application are reserved for determination
in the further proceedings foreshadowed in this application save that
- |
| |
(a) |
if the applicant does not institute those legal proceedings within
three weeks of the date of this order, either party may, on not less
than 96 hours’ notice to the other, apply to this Honourable Court
for an order determining liability for those costs and determining what
must be done about removed items and any copies thereof; |
| |
(b) |
any other party affected by the grant or execution of this order
may on no less than 96 hours’ notice apply to this Honourable Court
for an order determining liability for the costs of such party and determining
what must be done about any item removed from any such party or any copy
thereof. |
| |
Note: in some situations the following may also be appropriate: |
| 10. |
The respondent and any other adult person in charge of
the premises at which this order is executed are further directed to
disclose to the sheriff of the above Honourable Court the whereabouts
of any document or item falling within the categories of documents and
items referred to in 1.1 above, whether at the premises at which this
order is executed or elsewhere to the extent that the whereabouts are
known to such person(s). |
| 11. |
In the event of any document or item is disclosed to be
at the premises other than the premises mentioned in paragraph 1.1 of
this order, the applicant may approach this court ex parte for leave
to permit execution of this order at such other premises. |
| |
|
| |
Click
here to Download Annexure B PDF format. |
| |
Click
here to Download Annexure B in MS Word format |
| |
|
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