Article by listed attorney Fawzia Khan
An Anton Piller order is a legal remedy available within our legal system but which is relatively unknown to most lay persons. Anton Piller orders are applications made to court in cases where a person (the applicant) who wants to institute legal proceedings against someone else (the respondent), has reason to believe that the respondent is in possession of vital evidence which he or she could easily destroy or hide if they became aware of the legal proceedings. The applicant can apply to the court and ask for the evidence to be preserved and to be delivered to the sheriff of the court. The application is generally made in secret and without notice to the other party (the respondent). Because this type of application is so invasive and violates one legal rights it has been called “ draconian” in its application. It certainly offends against the “audi alteram partem” principle (which means “to hear the other side”), which is the principle of compelling the court to hear both sides of the story before it pronounces its judgment.
The most common area when Anton Piller orders are likely to be used is in the business and commercial environment. It could involve restraint of trade agreements, intellectual property matters, trade secrets, company data, client lists, although it’s not restricted to such matters. The case which remains the benchmark for the South African legal position on Anton Piller orders, lies in the Supreme Court of Appeal decision of Universal City Studios Inc and Others v Network Video (Pty) Ltd 1989(2) SA 734. In passing judgment in that case the judges said that Anton Piller orders “have become a necessary evil in certain circumstances and will remain so until a successful constitutional challenge is brought. What is furthermore clear is that by its very nature it violates the rights of persons who are affected by its terms”. “The Courts generally adopt a cautious and circumspect approach to such an application and if the relief is granted, stringent safeguards should be built into the order”.” Hence the courts (who have a discretion in such cases), will not readily grant such an application unless it is properly satisfied that the applicant has a cause of action against the respondent, which he intends to pursue.
The applicant must also specify exactly what the nature of the evidence is for example he must specify the documents or things, which are in the possession of the respondent. The applicant will also need to convince the court that he or she has a real and well-founded apprehension that the evidence may be hidden or destroyed. The documents are then handed to the sheriff of the court for preservation. Know your rights!
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