Harvey v Niland and Others (5021/2015) [2015] ZAECGHC 149; 2016 (2) SA 436 (ECG); (2016) 37 ILJ 1112 (ECG) (3 December 2015)

Harvey v Niland and Others (5021/2015) [2015] ZAECGHC 149; 2016 (2) SA 436 (ECG); (2016) 37 ILJ 1112 (ECG) (3 December 2015)

The court found that the application was urgent and justified the truncated time periods. Annexure 'G', although unlawfully obtained by hacking the first respondent's Facebook account, was admissible as evidence because the Electronic Communications and Transactions Act does not expressly render such evidence inadmissible, and the discretion to admit unlawfully obtained evidence in civil proceedings must consider the nature of the evidence, the extent of the privacy infringement, and the availability of lawful means to obtain it. The court held that the first respondent's expectation of privacy was diminished by his duplicity and breach of fiduciary duties. The evidence established that...

Citation
[2015] ZAECGHC 149
Parties
Applicant: Gregory Ernest Harvey; Respondent: Bruce Desmond Niland; Respondent: Huntershill Safaris CC; Respondent: Thaba Thala Safaris
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
3 December 2015
Case Number
5021/2015
Procedural Posture
Urgent Application / Final Interdict and Application to Strike Out Evidence
Outcome
Final interdict granted against the first respondent; application to strike out annexure 'G' dismissed; counter-application dismissed; costs awarded to applicant including costs of two counsel.
Judges
C Plasket
Legal Topics
Fiduciary Duties of Members, Close Corporation Act, Unlawful Competition, Admissibility of Unlawfully Obtained Evidence, Urgent Interdict, Restraint of Trade
Commercial and Corporate Civil Procedure Fiduciary Duties of Members Close Corporation Act Unlawful Competition Admissibility of Unlawfully Obtained Evidence Urgent Interdict Restraint of Trade

Case Brief

Summary, issues, holding and outcome

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Parties

Gregory Ernest Harvey

Applicant

Bruce Desmond Niland

Respondent

Huntershill Safaris CC

Respondent

Thaba Thala Safaris

Respondent

Procedural Posture

Urgent Application / Final Interdict and Application to Strike Out Evidence

Legal Issues

  1. 1 Is the application urgent and should it be heard on truncated time periods.
  2. 2 Should annexure 'G' (Facebook communications) and related material be struck out as unlawfully obtained evidence.
  3. 3 Has the first respondent breached his fiduciary duties to the second respondent under s 42 of the Close Corporation Act.

Ratio Decidendi

The court found that the application was urgent and justified the truncated time periods. Annexure 'G', although unlawfully obtained by hacking the first respondent's Facebook account, was admissible as evidence because the Electronic Communications and Transactions Act does not expressly render such evidence inadmissible, and the discretion to admit unlawfully obtained evidence in civil proceedings must consider the nature of the evidence, the extent of the privacy infringement, and the availability of lawful means to obtain it. The court held that the first respondent's expectation of privacy was diminished by his duplicity and breach of fiduciary duties. The evidence established that...

Court Disposition

Final interdict granted against the first respondent; application to strike out annexure 'G' dismissed; counter-application dismissed; costs awarded to applicant including costs of two counsel.

Orders

  • The application to strike out annexure 'G' and related matter is dismissed with costs, including the costs of two counsel.
  • The first respondent's counter-application is dismissed with costs, including the costs of two counsel.