AFRICAN SUGAR ASSOCIATION
SUGAR DISTRIBUTORS (PTY) LTD
LEVY AJ 2000/05/24
SUMMARY JUDGMENT - The Anton Piller
Order being final, this Court had no jurisdiction to set it aside.
The Rule nisi
granted when the
Anton Piller Order was granted was related to the Anton Piller Order
but the Anton Piller Order was not subject thereto.
In a return day of a Rule nisi
for an interdict,
Applicant must prove that it is entitled to a final interdict.
CASE NO.: (P)
IN THE HIGH
COURT OF NAMIBIA
In the matter
SUGAR ASSOCIATION APPLICANT/PLAINTIFF
DISTRIBUTORS (PTY) Ltd RESPONDENT/DEFENDANT
In this matter Applicant is represented by Adv D F Smuts and
Respondent is represented by Mr R Heathcote.
This is a
return day of a rule
issued on 23 November 1999, the return date having been postponed
from time to time.
October, 1997, Applicant (then Plaintiff) issued summons against
Respondent (then Defendant) for damages arising from a written
contract concluded by the parties on 7 December 1995 at Windhoek. As
far as is relevant hereto sugar was sold by Applicant to Respondent
at a rebate and as a condition of the Respondent's entitlement to
purchase sugar at a rebate, all sugar sold to Respondent, would have
to be consumed in Namibia and furthermore it was a condition of the
sale that during the operation of the agreement and for 90 days after
its termination, Respondent would not sell or otherwise dispose,
directly or indirectly, of such sugar, unless repacked into bags or
packets of 50 kilograms or less, by a packaging plant operated by
Respondent in Namibia, nor to any person whom Respondent knew, or
suspected, would directly or indirectly export such sugar back to the
Republic of South Africa or Botswana, either as sugar, or as a
product containing such sugar.
alleged that Respondent wrongfully and unlawfully breached these
conditions and caused Applicant damages in a sum in excess of N$6 000
000 (six million) and is liable to Plaintiff for such damages.
of Respondent's defence is a denial of such breach.
was set down for hearing on 22nd
November, 1999, but in the interim period, between summons and the
date of hearing, there were certain clashes between the parties, two
of these clashes took the form of applications to Court arising from
Respondent's failure to make proper discovery and a third application
was an application to strike out Respondent's defence, also on the
alleged grounds of Respondents persistent failure to discover
In the two
applications to compel Respondent to make certain documents available
to Applicant, Hannah J granted such orders and in respect of one of
such matters castigated Respondent.
In respect of
the matter to strike out Respondent's defence, the Learned Judge who
heard that matter, postponed that matter to the date of trial.
At the trial
on 22 November 1999 once again Applicant protested that Respondent
had failed to make full and proper discovery. After argument, the
trial was postponed, Respondent to pay costs. On the 23 November
1999, Applicant, still dissatisfied with Respondent's purported
discovery, applied to Court and obtained from the High Court an
order, somewhat inelegantly drafted, for an order known as an Anton
Piller Order and for a rule
in respect of relief not provided for in the Anton Piller Order.
Piller procedure is as much part of Namibian Law as it is part of
English and South African law. As far as this Court is aware, the
Courts of Namibia have granted such an order on at least three
- January 1990 (unreported) Ex
parte Ruben Nowaseb and two Others
- 22 June 1991 (unreported) Blackwood
Hodge (S.A¥Pty) Ltd
Plant Shares and Repairs (Pty) Ltd -February
Africa the leading cases are:-
Officer Commanding, Temporary Police Company Wagendriftdam and
(1995(4) SA 1 (A))
City Studios Inc v Network Video (Pty) Ltd
1986 (2) SA 734(A).
Piller order inter
authorises entry into and inspection of a party's premises for the
purpose of finding and preserving evidence, usually in an action to
be instituted, and which the applicant has a reasonable suspicion
exists but which the Respondent is trying to withhold or conceal.
Depending on the facts placed before a court, the court concerned may
be reluctant to grant such an order lest the applicant be engaged on
a fishing expedition. On the other hand there is substantially less
chance of a fishing expedition, where the order is granted, as it was
in this instance, after the commencement of proceedings, and after
the defendant has persistently failed to make a full and proper
discovery. In the present case the search pursuant to the Anton
Piller Order produced order books which should have been discovered
on the first occasion when the present
made discovery and failed to discover these books. It does not avail
Respondent to argue that the books found did not help Applicant and
that in any event Applicant should have a record of those orders as
they were orders placed with Applicant. The rule as to discovery,
requires discovery of all material documents whether they go to prove
either party's case or not. They were therefore discoverable and were
contended that this Anton Piller Order was a final order. It was one
of the few matters on which they were ad idem.
However, each Counsel had different contentions concerning such
finality. Mr Smuts said that inasmuch as Mr Heathcote concedes that
the Anton Piller Order was final, Mr Heathcote could not attack it,
in this forum, and could only do so on appeal. He argued that if it
was contended that the order was interlocutory in effect, the
Defendant could still appeal with the prior leave of the Court. Mr
Heathcote's contention was that because it was final and because it
was granted ex parte.
Applicant was obliged to disclose to the Court all and anything which
may relate to the matter and which may influence the courts decision
and because of failure to do so, the order must be set aside. He
referred this Court to certain English decisions in this regard. It
is unnecessary to refer to the English law. There are several cases
in our own law which govern the principle. One of the leading cases
(1979(4) SA 342(W) and 348 E and 349 A) where the learned judge
concluded that (a) in ex parte
applications all material facts must be disclosed which might
influence a court in coming to a decision (b) the non-disclosure or
suppression of facts need not be wilful or mala
to incur the penalty of rescission of an order granted
and (c) the court apprised of the true facts, has a discretion to set
aside the ex parte
order or to preserve it. Even where there is a false statement by the
applicant, there is no rule of law which obliges the court to set
aside the rule which has been granted. It is a matter for the
discretion of the court whether to do so or not. (cf. Hillman
Bros (West Rand) Pty Ltd vs Van den Heuvel
1937 W.L.D. 41 at 43).
refers particularly to a letter written by its Attorney to
Applicant's Attorney, wherein Respondent's Attorney invites Applicant
"to inspect" documents. Respondent argues that if this
letter had been disclosed to the Court, the Court would not have
granted the Anton Piller Order. In my view, this letter should have
been disclosed, but failure to do so, does not justify this Court in
interfering with the Anton Piller Order nor does this failure affect
An "inspection" in our law of procedure, presupposes that
the documents to be inspected have all been discovered and that they
are available to be inspected in the office of the Attorney. This
letter falls far short of that. Even an invitation to an opposing
litigant to inspect a "batch", or a "bundle" of
documents, or to inspect documents which may be found, is not a
substitute for discovery. It was because of the persistent failure to
make proper discovery that suspicion was aroused and that the Anton
Piller Order was granted. This argument of Respondent is rejected.
While it was
at first conceded by Counsel for Respondent that the Anton Piller
Order was final he subsequently argued that it formed part of the
and that it should, with the Rule
this Court does not sit as a Court of appeal, it cannot set aside the
Anton Piller Order, and if it is part of the Rule
(which I am satisfied it is not) for the reasons already mentioned
and for the reasons to be dealt with hereunder, this Court would make
that Order final.
At the time
that Applicant applied for the Anton Piller Order it applied for a
was granted calling upon the Respondent to show cause, if any, on 3
December, 1999, why a final order should not be granted interdicting
and restraining Respondent from destroying or hiding or in any was
interfering with any of the documentation referred to in paragraph 7
(of the Anton Piller Order) or any other documentation which may be
relevant to the action instituted against it by the applicant.
Respondent was also called upon to show cause why an order to pay
Attorney and Client costs should not be made final.
date was postponed from time to time and this Court is now seized
with the application that the rule should be made final.
was intended to compliment the Anton Piller Order and to assist in
the preservation of evidence which Respondent had in its possession
for the trial, which was still to take place in the future.
of the Anton Piller Order provides:-
the Respondent or person's in charge of Respondent's premises for the
time being, are directed forthwith to point out and disclose and hand
to the Deputy Sheriff who shall seal some in a suitable envelope or
container, any documents as described in paragraph 7 hereunder, until
the discharge or confirmation of the rule."
shows that while the two orders are in one document and related they
are in fact two distinct orders.
described the nature of the documents referred to in paragraph 6 and
they comprised relevant order books and documents evidencing proof of
payment of orders including bank transfers and accounting records
relating to payments for purchases of sugar.
aforegoing documentation should have been referred to in Respondent's
By reason of
Respondent's failure to comply with the Rules of Court, application
was made on 15 June 1999, to the High Court and Respondent was
ordered to discover, "1.1 All invoices and statements in its
possession relating to the sale of sugar or
fondant by the Respondent, Terra Trading (Pty) Ltd, or, Namibia Sugar
Packers (Pty) Ltd on credit for the period December, 1995 to 16 May,
1997, 1.2 All of the Respondent's bank statements and deposit
slips for the period
1995, to July, 1997, in respect of all the Respondent's bank
aforegoing order did not relieve Respondent from discovering any
further and additional documentation which Respondent found. Because
of its failure so to do, in October 1999 further application was made
to Court and Respondent was ordered to comply with Applicants further
Rule 35(3) notice in relation to:-
Invoices, statements and delivery notes received by the Defendant in
respect of all sugar and/or industrial fordant imported "into
Namibia from Swaziland and countries, other than the Republic of
South Africa, by the Defendant and/or Terra Trading (Pty) Ltd and/or
Namibia Sugar Packers (Pty) Ltd during the period 1995 to 1997
documents relating to the importation of sugar and/or industrial
documents and records which record when, and the manner in which,
the Defendant paid for such imported sugar and/or industrial
action came to trial on 22 November 1999, Respondent had not complied
with this order and Applicant on 23 November 1999 was granted the
Anton Piller Order and the Rule
referred to above.
hearing of the return date of the Rule
Mr Heathcote did not contend that his client had complied with that
order which the Court had made in October 1999. In one of his heads
of argument which he echoed in Court, Mr Heathcote said, "The
main reasons for the delay in complying with the ... .order, is that
some thousands of documents have been moved from the administrative
principle office of the
(situated in Windhoek) to Walvis Bay and those documents were in a
state of disorder"
His heads of
argument go on to say that Respondent "could not state under
oath that it was or was not in possession prior to a proper search
This is an
unacceptable excuse when one considers that summons in this matter
was issued on 23 October 1997 and Respondent has had about 3 years to
collect and collate the evidence.
ostensible effect of a rule
is to order a respondent to show cause why an interim interdict
granted, should not be made final, the onus remains on an applicant
for a final order, to satisfy the court that it is entitled to such
therefore, Applicant must satisfy this Court that it has a clear
right sometimes referred to as a definite right. In the instant case,
if there is evidence of whatever nature, for or against Applicant,
Applicant is entitled to know what that evidence is. It has a clear
and definite right thereto. Without such knowledge there would not be
a "fair trial" as envisaged by Article 12 of the
Constitution of Namibia.
Applicant must satisfy this Court that there is a reasonable fear
that this evidence, whatever it may be, may not still be in existence
when this matter eventually comes to trial should an interdict not be
granted. Respondents blatant disregard for the preservation of
evidence since the commencement of the proceedings, justifies a
fear that such evidence may not be preserved. This fear, furthermore,
is confirmed by the repeated efforts made by Applicant in its
applications to Court to get Respondent to make various documents
available and Respondent's excuses why it is not available.
there must be no alternative remedy available to Applicant to protect
its right. Mr Heathcote argues that the Rules of Court and the
implementation thereof, constitutes the correct and only remedy. That
clearly was the intention of the framers of the Rules but
Respondent's complete and utter disregard for its obligations in
terms of the Rules, as illustrated by the history of this litigation,
justifies sterner methods. A final order has the effect of a criminal
sanction for failure to comply therewith, and those responsible for
the management of Respondent, particularly the conduct of this
litigation, may well find that such criminal sanction, is more
persuasive than civil litigation.
make the Rule
issued on 23 November 1999 final and order that Respondent pay the
costs on an attorney and client scale.
brought an application to strike out from the Replying Affidavit to
the Anton Piller application certain paragraphs of Rademeyer and the
entire affidavit of Gabriel. As I have said, inasmuch as this Court
is not a Court of Appeal, it cannot deal therewith. In any event and
notwithstanding this fact, those paragraphs and the affidavit of
Gabriel, have not influenced this Court on coming to the decision at
which this Court has arrived.
has not complied with the Order of Court granted by Hannah, J on
October 1999 and has still not filed a proper discovering affidavit.
Respondent's Application of 11 May 2000 is therefore refused with
Order therefore is:-
issued on 23 November 1999, is made final, (2) Respondent shall pay
the costs on an Attorney and Client scale,
Respondent's Application to strike out dated 11 May 2000, is
refused, (2) Respondent shall pay the costs of such Application.
benefit of the taxing master, this Court spent approximately half an
hour, in all, considering the Application to strike out.
OF PLAINTIFF/APPLICANT ADV
OF DEFENDANT/RESPONDENT ADV
F Koep & Partners