Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, Maphanga v Officer Commanding, SA Police Murder & Robbery Unit, Pietermaritzburg (500/93,525/93) [1995] ZASCA 49; 1995 (4) SA 1 (AD); [1995] 2 All SA 300 (A) (12 May 1995)

Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, Maphanga v Officer Commanding, SA Police Murder & Robbery Unit, Pietermaritzburg (500/93,525/93) [1995] ZASCA 49; 1995 (4) SA 1 (AD); [1995] 2 All SA 300 (A) (12 May 1995)

The Supreme Court of Appeal held that Anton Piller orders for the preservation of evidence are available in South African law beyond the intellectual property context, including in cases involving alleged police torture. The court defined the requirements for such orders: a cause of action, possession of specific vital evidence by the respondent, and a real apprehension of destruction or concealment. Section 35 of the General Law Amendment Act does not bar such orders, as they are not rules nisi operating as interim interdicts. Section 3 of the State Liability Act does not apply to mere photographing or inventorying of evidence. Public policy does not preclude the granting of Anton Piller...

Citation
[1995] ZASCA 49
Parties
Appellant: Thulane Washington Shoba (assisted by Philda Shoba); Respondent: Officer Commanding, Temporary Police Camp at Wagendrift Dam; Respondent: Minister of Law and Order; Appellant: Mduduzi Siegfried Maphanga; Respondent: Officer Commanding, SAP Murder & Robbery Unit, Pietermaritzburg; Respondent: Officer Commanding, SAP Station, Loop Street, Pietermaritzburg
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 May 1995
Case Number
500/93,525/93
Procedural Posture
Civil Appeal / Appeal From the Natal Provincial Division; Judgment on Anton Piller Type Orders
Outcome
The appeal in Shoba was dismissed with costs. The appeal in Maphanga was allowed with costs, and an Anton Piller order for inspection and photographing of alleged torture apparatus was granted, with costs of the application reserved for the damages action.
Judges
Corbett, E M Grosskopf, Nestadt, Steyn, Nicholas
Legal Topics
Anton Piller Orders, Preservation of Evidence, Torture Claims, Declaratory Relief, State Liability, Interim Relief
Civil Procedure Delict Anton Piller Orders Preservation of Evidence Torture Claims Declaratory Relief State Liability Interim Relief

Case Brief

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Parties

Thulane Washington Shoba (assisted by Philda Shoba)

Appellant

Officer Commanding, Temporary Police Camp at Wagendrift Dam

Respondent

Minister of Law and Order

Respondent

Mduduzi Siegfried Maphanga

Appellant

Officer Commanding, SAP Murder & Robbery Unit, Pietermaritzburg

Respondent

Officer Commanding, SAP Station, Loop Street, Pietermaritzburg

Respondent

Procedural Posture

Civil Appeal / Appeal From the Natal Provincial Division; Judgment on Anton Piller Type Orders

Legal Issues

  1. 1 Whether an Anton Piller order for preservation of evidence may be granted against the police in civil claims for damages arising from alleged torture.
  2. 2 Whether section 35 of the General Law Amendment Act, 1955, or section 3 of the State Liability Act, 1957, bars the granting of such orders.
  3. 3 Whether the Supreme Court has jurisdiction to grant declaratory relief regarding procedural rights in the absence of a concrete dispute.

Ratio Decidendi

The Supreme Court of Appeal held that Anton Piller orders for the preservation of evidence are available in South African law beyond the intellectual property context, including in cases involving alleged police torture. The court defined the requirements for such orders: a cause of action, possession of specific vital evidence by the respondent, and a real apprehension of destruction or concealment. Section 35 of the General Law Amendment Act does not bar such orders, as they are not rules nisi operating as interim interdicts. Section 3 of the State Liability Act does not apply to mere photographing or inventorying of evidence. Public policy does not preclude the granting of Anton Piller...

Court Disposition

The appeal in Shoba was dismissed with costs. The appeal in Maphanga was allowed with costs, and an Anton Piller order for inspection and photographing of alleged torture apparatus was granted, with costs of the application reserved for the damages action.

Orders

  • The appeal in Shoba v Officer Commanding, Temporary Police Camp at Wagendrift Dam and Another is dismissed with costs, including costs of two counsel.
  • The application for amendment of prayers in Maphanga is granted.