Case summary written by Sean Buskin and checked by Stefan Bezuidenhout
5 October 2020
This case concerns an application by Willem Hendrik Frederik Du Plooy (“the First Respondent”), Chanel Celeste De La Roche-Vivviers (“the Second Respondent”), Wihan Groenewald (“the Third Respondent”), Oopkop (Pty) Ltd (“the Fourth Respondent”), Willem Hendrik Frederik Du Plooy (“the Fifth Respondent”) and WWJ Agri (Pty) Ltd (“the Sixth Respondent”) (herein after collectively referred to as “the Respondents”) for the suspension of paragraph 9 of an Anton Piller order (“the Order”) granted on 4 September 2020 in favour of Impac Underwriting Managers (Pty) Ltd (“the First Applicant”) and Impac Cropsure (Pty) Ltd (“the Second Respondent”) (herein after collectively referred to as “the Applicants”).
The contentious paragraph of the Order states as follows:
“That, unless a different direction be obtained from the Court, and within two business days of execution of the Order, the applicants and their attorneys be entitled to inspect all or any of the removed items for preservation in order to assess whether they/it provide/s evidence relevant to the present application or to further legal proceedings envisaged in the application.”
The Respondents set out their argument, inter alia, as follows:
The purpose of their application is to allow for the court to re-examine the ambit of the Order granted;
- significantly, the Respondents seek for the court to suspend or amend the operation of the abovementioned paragraph 9 of the Order pending the return day;
- the Respondents allege that, due to the subject matter upon which the Applicants’ application is based upon, reasonable grounds exist for the suspension and/or amendment of the Order and its execution. The Respondents rely on, inter alia, the following grounds in their application:
2.1. the wording of the Order is too broad and vague insofar as to its specificity as to what evidentiary material the Respondents are required to preserve;
2.2. the order was executed, on 8 September 2020, in a manner which was contrary to what was envisaged in the order and/or in a manner beyond that permissible legally in that it allowed for indiscriminate copying of data, inspection of and access to documents; and
2.3. the Applicants’ application was, rather than a means of preserving crucial evidence, a ploy by the Applicants to support future court proceedings.
On or about 8 September 2020, a Sheriff, together with supervising attorneys and computer experts, arrived, in execution of the Order, at the Respondents’ premises;
Upon their entry into the Respondent’s premises, mirror copies and clones were made of, and searches were conducted of the following devices and documents:
- the First and Fourth Respondents’ computer devices;
- documents detailing the reasoning as to why crops were insured with King Price Insurance, of which King Price Insurance have a direct and substantial financial interest;
- the First Respondent’s laptop was cloned despite the fact she worked for a Company not party to the proceedings;
- the Second Respondent, who was not present at his property when the search was conduct, but who nonetheless had his wife’s laptop cloned; and
- clones were made of drives of devices and the personal laptop of the Fifth Respondent which contained data and files relevant to his work with a number of other clients.
Furthermore, the Applicants and the Fourth Respondent are direct competitors and the Order grants the Applicants unfettered access to all information pertaining to the business of their competition.
Therefore, an order is sought amending the Order, in order to allow the Applicants and their attorneys to inspect the documents copied, before the order is contested on the return date.
The Applicants’ argument is, inter alia, the following:
The Order granted allows for the preservation and seizure of evidence of significant value, in that the information is commercially sensitive and confidential information. In light of the execution of the order, the Applicants discovered that information had been misappropriated from it by previous employees and consultants, which was the basis of their suspicions leading to the main application.
As a result of the execution of the order, the Applicants may take litigious steps to recover the misappropriated information, by means of, inter alia, interdictory relief halting the unlawful conduct, establishing the nature, extent and effect of the unlawful conduct and the recovery of damages as a result thereof.
The Respondents’ application for an amendment of the Order should be viewed as a means of concealing the unlawful conduct. The broadness of the order has not been abused by the Applicants and any irrelevant information was of no interest to the Applicants.
The Applicants confirmed that mirror copies were indiscriminately made of certain electronic devices in contradistinction to the wording of the Order but averred that all information copied would remain confidential and ultimately be disregarded by the Applicants.
The court began its evaluation of the arguments presented by, firstly, inspecting the wording of Order, allowing for a proper interpretation of the contentious paragraph.
The order provided, inter alia, for the following:
- an independent supervising attorney would be appointed to be present during execution of the Order, ensuring execution was done in accordance with the Order;
- computer experts would be appointed for the execution of the Order;
- the Sheriff, supervising attorneys and computer experts would be given immediate and unrestricted access to the premises, in order to:
o access, inspect and search the premises, including electronic devices and data storage devices, in order to identify information directly or indirectly in possession of the Respondents, and of relevance to preservation; and
o examine each item and determine whether same was relevant to preservation.
- the Respondents would be forced to disclose the whereabouts of any documents or files relevant to preservation, whether at the premises or not, all passwords and procedures leading to unrestricted access would further have to be provided as well as the making of copies, mirror images and forensic images; and
- the Sheriff would be permitted to attach and remove any items related to preservation.
The execution of the Order thus required more than simple identification and storage, but also identification of items stored on devices.
The Court did consider the nature of the industry relevant to the proceedings and its competitiveness. As had been discussed in the case of Kebble and Others v Wellesley-Wood and Others, in order to overcome the difficulties a Sheriff may face in identifying documents, an applicant, attorney or computer expert may be present with the Sheriff in execution of such an order.
The issue the Court felt it had to decide was whether it would be fair and just to allow the Applicants and their legal representatives to inspect the removed items to assess whether they provide evidence relevant to the application or envisaged litigation. The court viewed this issue in light of the fact that copies may have been made of information beyond the scope of the Order.
The Court acknowledged that, due to the specialised nature of the industry of the Applicants and Respondents, the Applicants’ input may be vital in identifying and inspecting the removed items. However, such input may not infringe upon the protection of the Respondents’ rights.
As a result, the Court granted the amendment of paragraph 9 of the order to state:
“That, unless a different direction is obtained from the Court, and until 20 September 2020, the applicants’ attorney(s), in the presence of a supervising attorney, are entitled to inspect all or any of the removed items for preservation in order to assess whether they/it provide/s evidence relevant to the present application or to further legal proceedings envisaged in the application (“the Envisaged Litigation”).”
The case provides significant value on the amendment or variation of Anton Piller order.