An Anton Piller order allows a prospective litigant to instruct the sheriff of the court to search a property and seize specific documentary evidence when a “real and well-founded apprehension” exists that such evidence will be hidden or destroyed before litigation begins.

In arecent judgment (1760.pdf (saflii.org)), the High Court emphasized that, for an Anton Piller order to succeed, the applicant must have a clear cause of action which they intend to pursue.  The applicant failed to satisfy the court that it had a claim, and the order was dismissed.

The applicant sought an order to allow them to seize documents in the possession of their former employees.

The court granted an Anton Piller order, as well as an interim interdict restraining the respondents from using, copying, or sharing the documents. The respondents subsequently applied to have both orders set aside on the basis that the applicant did not have a prima facie cause of action.

The court granted the applicant a 60-day period within which to institute the envisaged proceedings. The applicant failed to do so and subsequently applied for an extension of the deadline. The court dismissed this application, as well as the interim order, and set aside the Anton Piller order.

When asked why it did not institute proceedings within the provided timeframe, the applicant responded that it needed to first peruse the documents that were seized under the Anton Piller order before it could formulate its cause of action.

The court found that this argument impermissible. The purpose of an Anton Piller order is expressly to preserve evidence in support of an existing cause of action, not to construct a cause of action that the litigant suspects might exist.

The court also clarified that Anton Piller orders do not automatically entitle the applicant to inspect the seized documents. An Anton Piller order simply serves to reassure the party, who has a cause of action, that formulating pleadings will not be in vain due to the destruction of important evidence.

The court emphasised the important distinction between pleadings and evidence, namely that pleadings contain statements of facts, while evidence only later serves to support those facts.  Therefore, to inspect such documents, the applicant must request discovery thereof upon close of pleadings.

The order is a temporary preservation order till the claim is instituted and, if so, until the documents seized are produced during the discovery process.

This blog was authored by Brigitte Geyer, Candidate Attorney.