Reportable
Case No 253/02

In the matter between:

MEMORY INSTITUTE SA CC
T/A SA MEMORY INSTITUTE

Appellant

and

ALBERT (A P) HANSEN

1st Respondent
LIZETTE (J E) HANSEN

2ndRespondent
ANDRIES STEPHANUS DU PLESSIS

3rd Respondent
MICRO MATH TRADING 273 CC

4th Respondent
MARLIE DU PLESSIS

5th Respondent

Coram:
HARMS, SCHUTZ, CAMERON, CONRADIE and HEHER
JJA
Heard:
8   MAY 2003
Delivered: 16 MAY 2003
Subject:
Anton Piller orders; copyright: proof of; approach to ex parte
applications

JUDGMENT

HARMS JA/

HARMS JA:
[1] The name of Anton Piller, once again, has been taken in vain and the
guilty party, the appellant, deserves to bear the consequences by having its
case dismissed, which will be done in due course. The appellant, a close
corporation, without notice brought an urgent ex parte application in the
Orange Free State High Court seeking a rule nisi with interim effect against
two respondents (Mr and Mrs Hansen). Counsel calls it an Anton Piller
order. Musi J, who heard the matter, granted an order in its terms.
[2] It should, I venture to suggest, be common knowledge that Anton
Piller orders had their origin in a judgment of the Court of Appeal in Anton
Piller KG v Manufacturing Processes Ltd.1 In this country the seed fell
initially on rocky ground guarded by prophets of old but eventually took root
and the plant grew and prospered.2 What is permitted and what not for the

1 [1976] RPC 719 (CA), [1976] 1 All ER 779 (CA), [1976] Ch 55 (CA).
2 Cerebos Food Corporation Ltd v Diverse Food SA (Pty) Ltd 1984 4 SA 149 (T) 161H and 163A-B
commenting on Economic Data Processing (Pty) Ltd v Pentreath 1984 2 SA 605 (W).

grant of these orders, considering the number of reported judgments on the
matter, should also be common knowledge. Regrettably it is not.
[3] The order granted provided for the removal of goods (such as a
computer) by the sheriff (with the police’s assistance if need be – why, we
are not told) and the handing over of them to the appellant. Duly armed with
the order the sheriff, Mr van Vuuren (a member of the appellant) and the
attorney proceeded to the Hansen residence and took what they wanted. I
shall deal with this in a few words without references since those who care
to look can find them easily. Anton Piller orders are for the preservation of
evidence and are not a substitute for possessory or proprietary claims. They
require built-in protection measures such as the appointment of an
independent attorney to supervise the execution of the order. An applicant
and the own attorney are not to be part of the search party. The goods seized
should be kept in the possession of the sheriff pending the court’s

determination. Since it is the duty of an applicant to ensure that the order
applied for does not go beyond what is permitted (something that was not
done in this case) and since Musi J granted a rule nisi he was not empowered
to grant, the setting aside of the rule had to follow as a matter of course (as
happened when Van Coller J discharged the rule).3
[4] But, says the appellant, it was entitled to rely on a rei vindicatio,
having alleged that at least some of the goods belonged to it. The problem is
that on its own showing the Hansens were in possession of the goods in
terms of an agreement with the appellant. The agreement, as counsel seemed
to concede, appears to be a partnership agreement. How one partner can
claim possession of partnership goods, which by agreement is in the
possession of the other, I fail to understand. Even if one assumes that the
agreement was something other than a partnership, the Hansens were still

3 The appeal is against this order. Van Coller J refused leave to appeal, which was granted by this Court.

entitled to retain possession until the agreement was cancelled, and that had
not been done.
[5] As a second ‘but’ the appellant relies on copyright for the relief
sought. Counsel, however, could not refer to any prayer that related to or
was based on copyright infringement. In any event, how anyone could waste
time and money to pursue this so-called copyright claim is beyond
comprehension, as a superficial glance at the Copyright Act 98 of 1978
would have shown. Copyright, it has been said, is a technical subject and the
claimant is obliged to provide evidence to cover the technical points
necessary to establish the claim to copyright.4 Technical or not, any claimant
must prove the facta probanda, whether prima facie for an interim order or
on a balance of probabilities otherwise. The appellant alleged that it held
copyright in documents but these have neither been identified nor produced,
a novel way of proving copyright. Then Van Vuuren said that he is the

4 Vagar (t/a Rajshree Release) v Transavalon (Pty) Ltd (t/a Avalon Cinema 1977 (3) SA 766 (W) 775C.

author of these documents; later he said that he is the co-author. He failed to
inform anyone of when the works were created: was it before or after the
registration of the appellant as close corporation? Originality of these
phantom works is not alleged (s 2(1)). Van Vuuren is equally reticent about
whether he and his co-authors were qualified persons (s 3) or whether
copyright was conferred by reference to the country of origin (s 4). Since he
does not allege that he had been employed by the appellant at the time the
works were made and that the works had been made in the course and scope
of his employment, the alleged authorship of the alleged works had to
remain his and the co-authors (s 21(1)(d)). No written assignment of
copyright to the appellant is alleged (s 22(3)). And, if there are joint authors
(s 21(1)(a)), do they not all have to be a party to the proceedings?5
[6] Not able to satisfy the requirements of the Act, counsel pinned his
hopes on the Berne Convention on Copyright to which South Africa is a

5 Dean Handbook of South African Copyright Law (loose leaf ed) 1-30A thinks not.

signatory, apparently not realising that accession to the Convention did not
in itself make it part of our law. To add insult to injury the allegations
concerning possible infringement in the founding affidavit were purely
speculative, something borne out by the results of the sheriff’s search.
[7] The appellant, perhaps in desperation, also relied on unfair
competition. Again counsel was unable to identify any part of the order
sought that applied to this cause of action. The essential facts are these: the
Hansens wished to withdraw from the partnership agreement. The appellant
was prepared to buy them out but insisted that they agree to a restraint of
trade clause, which they refused. The original contract did not contain one.
And the Hansens took steps to begin their own and similar business and
commissioned someone to prepare the necessary material (which the
appellant admits differs from its material). No trade secrets are alleged and I
cannot perceive what wrong the appellant relies upon unless it laments the

fact that the Hansens wish to compete with it some time in the future and
that the appellant cannot prevent it because there was no restraint of trade
and it has no copyright protection.
[8] One is reminded of the words of Schutz JA in Payen Components SA
Ltd v Bovic CC and Others6 dealing with a similar situation where reliance
was placed upon copyright and in the alternative passing off:
‘In my opinion a Court should be wary of allowing the sharp outlines of these two
established branches of the law of unlawful competition, evolved through long
experience, to be fudged by allowing a vague penumbra around the outline. Unlawful
competition should not be added as a ragbag and often forlorn final alternative to every
trade mark, copyright, design or passing off action. In most such cases it is one of the
established categories or nothing.’
These words are enough to put this part of the case to rest.
[9] In the course of the proceedings against the Hansens in the Court
below the appellant, without service in the prescribed way, sought an urgent

6 1995 (4) SA 441 (A) 453 G-H.

interim order against a Mr and Mrs du Plessis and another close corporation
identical to that obtained against the Hansens. It also sought their joinder in
the proceedings against the Hansens. We are told that an order was issued,
but since we have not been afforded the privilege of seeing it, we do not
know what it contains. Van Coller J also did not have sight of the
provisional order but set it aside on counsel’s say-so. There is no reason why
this Court should be so accommodating. In any event, the result of this
sideshow cannot be but the same as that of the case against the Hansens.
[10] In the course of this judgment there is little reference to the answering
affidavits simply because they only exacerbate the appellant’s problems by
having created a number of serious factual disputes. Another reason for
disposing of the case on the appellant’s version is to illustrate another point
and that is that interim orders and rules nisi are not to be had simply for the
asking. Courts should satisfy themselves that a proper case has been made

out, more so if the subject is technical. The fact that a respondent may
approach the court for a reconsideration of the rule (Uniform rule 6(12)(c))
and that it may be set aside on the return day should serve neither as a sop
nor as a soporific.
[11]  The appeal is dismissed with costs and these include those of two
counsel (to the extent that two were employed).

_____________________
L T C HARMS
JUDGE OF APPEAL

AGREE:

SCHUTZ JA
CAMERON JA
CONRADIE JA
HEHER JA