An analysis of the structurally sound decision of Viziya Corporation v Collaborit Holdings
Anton Piller orders are used to ensure that crucial evidence is preserved so that it can be used in judicial proceedings. Anton Piller orders are obtained without notice to the respondent (i.e. ex parte) due to the risk that such evidence will either be concealed or destroyed. As such, the Anton Piller is considered to be an extraordinary remedy.
Due to the potential reputational harm that an Anton Piller may cause the respondent, as well as the potential for abuse on the part of the applicant, the decision of Viziya Corporation v Collaborit Holdings (Viziya Decision) sought to reinforce the principles of the Anton Piller and the confines in which this extraordinary remedy applies.
Viziya was in the business of developing and selling computer software. Viziya concluded an agreement with Collaborit, in terms of which Collaborit would market and sell Viziya’s products. This agreement contained two important provisions: firstly, Collaborit would ensure that Viziya’s products were not made available to competitors or suspected competitors of Viziya; and secondly, Collaborit was precluded from developing, marketing or selling Viziya’s products.
During the course of January 2016, Collaborit was accused of developing, selling and marketing rivalry products, which Collaborit did not deny and continued to do, thus leading to Viziya terminating the agreement. Seeking to claim damages from Collaborit for breach of contract, Viziya sought to obtain an Anton Piller from the High Court. This was in order to prevent Collaborit from concealing or destroying evidence, which Viziya would rely on in its damages claim.
In its application for the granting of the Anton Piller, Viziya set out various broad key terms which could be used to search for the documents and, thereafter, seize them. Viziya was successful and the High Court granted the Anton Piller. On the back of the Anton Piller, Viziya was able to extract all the information from Collaborit servers, which entailed an extensive search, and in terms of which the confidentiality of Collaborit client information was compromised.
Collaborit accordingly applied to the High Court to have the Anton Piller set aside. The High Court set aside the Anton Piller and refused Viziya leave to appeal. Viziya thereafter approached the Supreme Court of Appeal (SCA). The question before the SCA was whether the High Court exercised its discretion properly in setting aside the order.
In coming to its conclusion, the SCA referred to the decision of Universal City Studios v Network Video, in which it was held that in obtaining an Anton Piller order, the applicant must:
- Establish that a prima facie cause of action exists;
- Prove that the respondent is in possession of specific things or documents which constitute evidence; and
- Prove the reasonable apprehension that the respondent will destroy or conceal such evidence.
In relation to the first requirement (establishing that a prima facie cause of action exists), the SCA held that Viziya based its claim on breach of contract and unlawful competition and held that Collaborit had indeed breached the provisions of the contract. The first requirement had therefore been established.
In relation to the second requirement (the proving that specific things or documents are in the respondent’s possession), the SCA referred to the decision of Non-Detonating Solutions v Durie, in which it was stated that the applicant must identify or specify the documents which it sought to preserve under the Anton Piller order.
On this basis, the SCA held that a list of key terms was not sufficient to meet this requirement as it was both invasive and not specific. The SCA held that adopting a list of key terms had allowed Viziya to gain access to client documentation which it should not have had access to.
In relation to the third requirement (concerning the concealing or destroying such evidence), the SCA held that this was based on the concepts of dishonesty and untrustworthiness and that the test for this requirement was an objective one following the reasonable person test. Viziya alleged that Collaborit was dishonest and should not be trusted as it was a consulting firm that later did product development work, however, counsel was unable to justify this position.
The SCA accordingly held that the merits of this case were poor, and agreed with the decision of the High Court that leave to appeal should not be granted and that the Anton Piller should not have been granted either.
The Viziya Decision confirms that blanket search terms for unspecified documents fall short of the requirements necessary to obtain an Anton Piller. Clients should accordingly be mindful that they are required to be extremely specific with regards to the information or documentation sought when requesting an Anton Piller as the Courts will not allow a fishing expedition for evidence.
By John Bell, Partner, and Rui Lopes, Associate, Dispute Resolution, Johannesburg