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Dice Pizza vs Scooters Pizza High Court Judgement
Posted by admin on June 9, 2010Leave a comment (0)Go to comments
1074/09/1 078/09-rm
JUDGMENT
LOM Business Solutions t/a Set LK Transcribers/rm
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
PRETORIA
CASE NO: 1074/09 & 1078/09
2009-11-30
In the matter between DICE PIZZA ELDORAIGNE CC - 1 st Applicant
WAYLYNN CC - 2nd Applicant
and
SCOOTERS PIZZA (PTY) LTD - Respondent
JUDGMENT
LOUW, J: This is the judgment in two applications which were heard together, namely Waylynn CC versus
Scooters Pizza (Pty) Limited, case number 1074/09 and Dice Pizza Eldoraigne CC applicant and Scooters
Pizza (Pty) Limited case number 1078/09_
Due to the similarity of facts in these applications, it is convenient to in this judgment, address the issues
together, as counsel had done in their written and oral argument. The basis underlining both
applications, is an Anton Piller order obtained on 25 November 2008, by the present respondent
(Scooters) as applicant in case number 46893/08.
The Anton Piller order was, however, not granted against any of the present applicants herein referred to
as Waylynn and Dice Pizza. The order was, however, executed against them on 27 November 2008.
At these executions which occurred simultaneously at Dice Pizza Eldoraigne and Waylynn Magalieskruin a
number of objects and documents were seized. Apart from the sheriff, independent attorneys, a number
of employees of Scooters were also in attendance. The applicants ask that the Anton Piller should be set
aside, alternatively that the execution thereof be set aside.
The first ground for setting aside the Anton Piller is that Scooters did not make a full and fair disclosure
of all material facts as is the duty of any applicant in ex parte proceedings. It allegedly failed to do so
specifically in relation to the entities who were actually trading at the addresses where the Anton Piller
was executed. In this regard Scooters relied on a May 2008 report by a private investigator who
supplied information that the first respondent in the Anton Piller was apparently trading at those
addresses.
The independent attorneys made certain assumptions on the strength of what was contained in the
Anton Piller applications. For instance Ms Bertazzo stated the following in the Dice Pizza application, page
308, paragraph 8:
Almost simultaneously the owner of the Dice Pizza retail outlet, operating from the premises and a
franchisee of the first respondent, Mr Petrus Jacobus Coetzee (the franchisee) arrived and opened the
premises.
Ms Cooke the independent attorney in the other application, that is now the Waylynn application on page
326 paragraph 4, states:
On 27 November 2008 and pursuant to the court order granted by the above honourable court, I
attended at one of the pizza stores belonging to the first respondent at Montana Mall These
assumptions by both independent attorneys turned out to be wrong. In answer to the setting aside
applications before me, and there are similar allegations in both applications, by Mr Gonzago, I only refer
to what is stated in the Dice Pizza application.
22.4 In the light of all the circumstances set out above, believe that it was not unreasonable for the
respondent to believe that Silver Stars and/or Wayne was/were the owners of the Dice Pizza business
concerned.
22.5 I also draw to the attention of the court to the fact that in terms of the Anton Piller order,
particularly paragraph 4 thereof, the Anton Piller order was operative against, not only the respondents in
those proceedings, but also against any adult person in charge of the first respondent on any of the
premises set out in paragraph 13.7 of the founding affidavit in those proceedings.
This, however, does not help Scooters at all. Whether it reasonably believed something and regarding the
latter fact alleged that it was executable against any adult found on the premises, that can surely not
lead to the fact that the execution of the Anton Piller, was allowed against the two close corporations
who are the applicants herein. Close corporations can by no means of course be seen as adult persons.
Scooters may well have been negligent in relying on six month old information from the private
investigator, but I cannot find that it acted contrary to the principles set out above and that the Anton
Piller should be set aside only on the basis that a fair and full disclosure of material facts were not made
which principle is of course of utmost importance in ex parte proceedings.
There may be more merit in the fact that the order allowed certain named employees to be part of the
search party. I was referred in this regard by the judgment by Harms JA (as he then was) in Memory
Institute SA CC t/a SA Memory Institute v Hanson 2004 (2) SA 630 SCA where the following is said at
paragraph 3:
Anton Piller orders are for the preservation of evidence and are not a substitute for possessory or
proprietary plans. They require built in protection measures such as the appointment of an independent
attorney to supervise the execution of the order. An applicant and the own attorney are not to be part of
the search party.
I cannot see what In the facts of this case, makes it such an exception that in this case employees of
Scooters should have accompanied the search party to identify certain documentation. In my opinion
from the applications themselves, that is the Anton Piller application, sufficient particularity should appear
to allow the sheriff and independent attorneys to execute the order. One can imagine many much more
complicated intellectual property matters where goods allegedly has to be attached and seized, but the
identification should still be done without the participation of the applicants own attorney. In my mind
that principle stated recently by the Supreme Court of Appeal, is clear.
Further in this regard the applicants complain at paragraph 5.1 of the Anton Piller was too widely worded
in that it included the Respondents operation manual, the respondents disclosure document and the
data base of the respondents cellular telephone numbers of its customers.
These are amongst the items which were seized. As long as the employees of Scooters do not have
access to the information for use, i.e. that it is simply preserved, I do not see any serious objection. At
this point the above are only being preserved by the Sheriff.
It may in this regard be remarked that in terms of the Anton Piller Scooters had to institute action against
the respondents therein within 30 days for an interdict and subsequent relief. This Scooters did during
January 2009. In these applications it was stated that Dice Pizza and Waylynn would be joined in that
action. This has to date not happened, there is therefore no reason for Scooters, through the sheriff, to
further retain these goods.
I, however, will not decide to set the Anton Piller itself aside. That is the main prayer 1 in both
applications before me. It must be borne in mind that three other respondents are party to the Anton
Piller and that following the Anton Piller and the execution thereof action was instituted against them in
case number 1563/09.
The execution of the Anton Piller against Dice Pizza and Waylynn who were not parties to the Anton Piller
can only lead to one conclusion namely that it must be set aside. The question is not
whether Scooters was reasonably under the wrong impression. Further a clear duty rested on both the
sheriff and the independent attorneys to make sure that they executed against the correct respondents.
The most obvious questions were not asked, for instance are these the premises of Silver Stars Trading
CC? or is Silver Stars Trading CC running this pizza business from these premises? etcetera. Only once
they got affirmative answers thereto from a reliable source or person could execution lawfully have
commenced.
For Scooters Mr Michau relied on two cases, in Felix Group (Pty] Limited v Matus 1998 (1) SA 617 (CPO)
it was found that the court has a discretion to, in subsequent civil proceedings, allow the use of
documents seized unlawfully, i.e. without a warrant and contrary to constitutional rights. On the facts of
that case it was found to be admissible.
He also referred to Shell S.A. (Edms) Beperk v Voorsitter Dorperaad van die 0. VS. 1992 (1)SA 906 (0).
In daardie saak blyk dit ook uit die kopstuk dat daar geen logiese of regtens regverdigbare rede bestaan
of n beginsel bestaan waarom n hof in siviele verrigtinge nie dieselfde diskresie as in strafsake moet
geniet nie om materiaal wat relevant, maar andersins geprivilegeerd is, as ontoelaatbaar te reel vanwee
onder andere die onbehoorlike wyse waarop dit aan die litigant wat dit wil gebruik, bekend geraad het.
These two cases are, however, not in point. Executions against entities not party to the proceedings
cannot stand.
Scooters was let down by the independent attorneys from Bomann Gilfillan Inc and the sheriff, who did
not ask the above obvious questions.
My conclusion is therefore that the searches and seizures were unauthorised, illegal and constituted a
breach of both applicants rights to privacy and to conduct their businesses without unlawful interference.
That leaves for consideration the costs issue. The applicants, that is Dice Pizza and Waylynn, asked for
attorney and client costs. The following reasons seem to me to justify such costs:
1. The intrusive nature of the proceedings which I found illegally happened here.
2. That in launching the Anton Piller application Scooters relied on six months old information from the
private investigator.
3. That once the real facts became apparent and were communicated to Scooters, they did not concede.
They forced the present applicants to bring the present applications whilst they only proceeded with an
action against the three real respondents in the Anton Piller proceedings.
I therefore make the following orders:
In the Waylynn case 1074/09 I order in terms of paragraphs 2, 3, 4, 5 and 6 of the notice of motion.
In the Dice Pizza case 1078/09 I order in terms of prayers 2, 3, 4 and 5 of the notice of motion.