DISCOVERY AND INSPECTION – ANTON PILLAR ORDER

FRIEDSHELF 1509 (PTY) LTD t/a RTT GROUP AND OTHERS v KALIANJI 2015 (4) SA 163 (GJ)

Discovery and inspection — Anton Piller order — Burden of proof — Return day — Strong prima facie case to be made out of cause of action to which order relates.

Applicants obtained an order allowing for the search of respondent’s premises, the seizure of certain documents, and their preservation pending an action it intended to initiate against respondent for defamation and unlawful competition. Applicants alleged that respondent had sent an email to its customers, competitors and staff which was defamatory and which interfered with its contractual relationships. In issue on the return day was the degree of proof that the applicants were required to show in respect of the requirements for the order (namely (1) possession by the respondent of vital evidence; (2) a real apprehension that it might be hidden or destroyed; and (3) a cause of action to which the evidence related).
Held: At the initial ex parte stage of the application, the applicants were required to make out a strong prima facie case for each of the requirements; however, on the return day the applicants were required to demonstrate possession and apprehension on a balance of probabilities, and to make out a strong prima facie case for its cause of action.
Applicants had failed to establish a strong prima facie case for their cause of action, and the preservation order was accordingly discharged.

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