Viziya Corporation v Colloborit Holdings (Pty) Ltd and Others (38151/2016) [2017] ZAGPPHC 539 (3 August 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

Case Number: 38151/2016

Not reportable

Not of interest to other judges

Revised.

In the matter between:

VIZIYA CORPORATION Applicant

And

COLLOBORIT HOLDINGS (PTY) LTD First

Respondent

JANNIE POTGIETER Second

Respondent

NICO VAN DER WALT Third

Respondent

DOLF MARITZ Fourth

Respondent

MORNE PARSONS Fifth

Respondent

JOHAN CARSTENS Six

Respondent

WERNER ROESTORF Seventh

Respondent

KUBAN NAIDOO Eighth

Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1] This is the reconsideration of an Anton Piller order granted ex parte by Mabuse J on 12 May 2016.

[2] Prior to delving into the merits of the matter, it is apposite to refer to the requirements for Anton Piller relief as aptly summarised by Mbha JA in Non­ Detonating Solutions v Durie 2016 (3) SA 455 SCA at [18]:

"The use of Anton Piller orders in our law is now well established The requirements that must be satisfied for the granting of such an order were summed up by Corbett JA in Universal City Studios Inc v Network Video (Pty) Ltd 1986 (2) SA 734 (AD); 1986 ZASCA 3 at 747 E - F, as follows:

'In a case where the applicant can establish prima facie that he has a cause of action against the respondent which he intends to pursue, that the respondent has in his possession specific documents or things which constitute vital evidence in substantiation of the applicant's cause of action (but in respect of which the applicant can claim no real or personal right), that there is a real and well-founded apprehension that this evidence may be hidden or destroyed or in some manner spirited away by the time the case comes to trial, or at any rate to the stage of discovery, and the applicant asks the Court to make an order designated to preserve the evidence in some way. ... "

PRIMA FACIE CAUSE OF ACTION

[3] The applicant , a company registered in Canada, specialises in developing and selling Third Party I add-on Enterprise Asset Management (EAM) solutions for Enterprise Resource Planning (ERP) systems/software . Its customer base is comprised of asset intensive companies, predominantly in the oil and gas, metals and mining industries.

[4] The first respondent is a South African company with an exclusive focus on delivering services and products for all aspects of Physical Asset Management using Systems Applications Products (SAP) as the platform.

[5] The remaining respondents are in the employ of the first respondent and for ease of reference the first to eighth respondents will be referred to as "the respondent".

[6] On 26 August 2014 the parties entered into a written Third Party Referral and Sales Agreement. According to clause 1 of the agreement, the objective of the agreement was ' ..to facilitate the referral and sale of VIZ/YA products and services by the BP (the respondent) , and to give the BP incentives to promote VIZ/YA products and services ':

[7] The main bone of contention between the parties vis-a-vis the contract is clause 5 with the heading Business Competitors of VIZIYA. The clause reads as follows:

''Some of our current competitors are SAIC, IBM Global Services, Deloitte Touche Tohmatsu, Tata Consultancy Services, Signum Group LLC, JSP3, Noetix, Dimension Technology Solutions Inc (eMesa), Prometheus Group Inc. Competing restrictions will also extent to future competitors whose names have been disclosed as such to BP, or whom BP suspects of being a possible competitor, prior to termination of the contractual association between VIZ/YA and BP. Business Partner must use all necessary precautions to insure the disclosure of VIZ/YA Propriety property is not made available to a competitor and/or suspected competitor. If BP is not sure about the status of a Third Party, they need to inquire with VIZ/ YA and get clearance on any questionable Third Party. Other than BP'S existing Mobility software product, BP shall not sell or develop solutions that are competitive to existing VIZ/ YA products. Non-disclosure Terms and Conditions are specifically critical when BP is interacting with competitors and suspected competitors. "

[8] The applicant has a WorkAlign suite of products that comprises of the following solutions:

i. a work scheduler ;

ii. a pre-packaged asset management analytics and could analytics suite;

iii. a maintenance budgeting solution;

iv. a warranty tracker; and

v. a mobile solution.

[9] The applicant avers that it's WorkAlign Suite ''is unique because of its range of focus, richness in functionality and our web-based integration architecture”.

[10] The fact that the applicant's product differs from that of the respondent in the sense that it is a so-called "bolt-on"

product that can be used with a number of systems i.e. Oracle, IBM and SAP is common cause between the parties. The SAP products

developed and sold by the respondent are more restrictive in application and can only be used with a SAP system. The only program

of the respondent that is not SAP based is the mobility software program that was mentioned in clause 5 supra.

[11] The applicant maintains that the respondent has, in breach of clause 5, developed and marketed its own scheduling solution at conferences held during April and May 2015.

[12] The respondent admits the aforesaid, but maintains that its scheduling solution is SAP based and is consequently not ''competitive to existing VIZ/YA products" as contemplated in clause 5 of the agreement between the parties.

[13] The respondent, further, explained that the development and selling of SAP products is its core business and should the applicant be correct with its interpretation of clause 5, the agreement needs to be rectified to reflect the true agreement between the parties, to wit that the respondent may develop and sell SAP products during the subsistence of the contract.

[14] Save for the scheduling solution, the applicant also alleges that the respondent has developed its own budgeting and warranty solutions during the contract period, which conduct, once again, breach the provisions of clause 5 of the agreement.

[15] Ex facie the wording of the contract, the applicant's interpretation of clause 5 of the contract appears to be at least prima facie correct.

[16] The applicant further contents that the respondent had, in breach of clause 6 of the agreement, utilised the applicant's confidential and proprietary information to develop its scheduling solution. Lastly, and with reference to an Anglo American contract, the applicant

accuses the respondent of unlawful competition, by attending the demonstration of the applicant's product to Anglo American without

announcing its presence and thereafter selling their own ''in-house solution" to Anglo American.

[17] Save for admitting that it entered into a contract with Anglo American, the remainder of the applicant's averments are denied by the respondent.

[18] The applicant has already issued summons against the respondent in respect of the aforesaid claims and the issues in dispute will no doubt be canvassed during the trial.

[19] I am, however, satisfied that, as alluded to earlier, the applicant has at least in respect of the breach of clause 5 established a prima facie case for purposes of Anton Piller relief.

SPECIFIED DOCUMENTS OR THINGS WHICH CONSTITUTE VITAL EVIDENCE IN SUBSTANTIATION OF THE APPLICANT'S CLAIM

[20] In respect of this requirement, Mbha JA held as follows in Non-Detonating Solutions v Durie, supra at para [36]:

"In my view this approach is against clearly established law which permits search and seizure orders for specific classes of documents. The test for the identification of documents in Anton Piller orders has been described as follows:

'There must be clear evidence that the respondent has such incriminating documents, information, articles and the like in his possession, or that, at least, there are good grounds for believing that this is the case.

(T)he applicant should satisfy the court that he has, as best the subject-matter in dispute permits him to do, identified the subject matter in respect of which he seeks attachment and/or removal, and that the terms of the order which he seeks have been delimited appropriately and are not so general and wide as to afford him access to documents, information and articles to which his evidence has not shown that he is entitled.[1]"

[21] Having regard to the issues in dispute, the order granted by Mabuse J identified the documents as follows in paragraph 5.1:

"5.1 to search for, locate and copy all and any documents that relate directly or indirectly:

5. 1. 1 to the first respondent (or any other respondent qua employee or director) developing, advertising, selling or supplying, scheduling, budgeting, analytics or warranty EPR solutions subsequent from 13 May 2014 to the present time (such documents to include, but not limited to, the documents referred to in annexure 'X" to the Notice of Motion),·and/or

5. 1.2 to the first respondent using or deploying any of the applicant's proprietary or confidential information (as described in the Third Party Referral and Sales Agreement signed on 26 August 2014) in first respondent's existing or proposed fine of products/solutions (including its WMWB Suite of products),·"

[22] Persons allowed to search for the documents are identified in clause 4 as being the sheriff, two independent attorneys and specialists in the Forensic Services Department or other divisions of PriceWaterhouseCoopers Advisory Services (Pty) Ltd or the Risk Assurance division of PriceWaterhouseCoopers Inc.

[23] The search is further defined in paragraph 6.5 of the order, which reads as follows:

"6.5 The forensic accountants, technology specialists and clerks (referred to in paragraphs 4.3 and 4.4 above) must deploy keywords set out in annexure ''Z" to the Notice of Motion, to identify documents and material which may be identified as complying with the criteria set out in paragraphs 5. 1 and 5.2 above,·"

[24] The criteria in paragraph 5.2 are the same as those in paragraph 5.1.

[25] The respondent pointed out that the documents mentioned in annexure "X" and the keywords contained in annexure "Z"

are so wide ranging that it allows the persons appointed in terms of the court order to have access to virtually all of the respondent's

data including confidential and proprietary material. The respondent fears that the applicant will use the information obtained to unlawfully compete with the respondent. A further concern raised by the respondent is the fact that some customer contracts contain confidentially clauses. Should third parties have access to these contracts, the respondent exposes itself to damages claims from its clients.

[26] The documents and keywords contained in the annexures are indeed wide ranging. Paragraph 1.2 addresses this fear of the respondent, in that the persons accessing the documents undertook to refrain from and prevent disclosure of any information gained during the execution of the order.

[27] At the end of the day, the applicant will only have access to the documents pertaining to the disputes between the parties.

[28] In the premises, I am satisfied that the documents referred to in the order are sufficiently identified and are vital evidence in the pending litigation between the parties.

A REAL AND WELL-FOUNDED APPREHENSION THAT THE EVIDENCE MAY BE HIDDEN OR DESTROYED OR IN SOME MANNER SPIRITED AWAY

[29] The applicable test in this regard appears from paragraph (27] of the Non-

Detonating matter referred to supra, to wit:

"The Anton Piller order is made where a reasonable fear exists that the respondent might in the normal course not discharge its duty to make full discovery. The establishment of dishonesty in the conduct of a respondent must ordinarily give rise to a fear that vital evidence might be concealed or that the respondent might not make full discovery. Thus in Dabelstein and Others v Hilde Brandt and Others Far/am J said the following:

'I think that it is clear from the summary of the disputed facts set out above that the first respondent has shown himself to be a thoroughly untrustworthy person in his dealings with the applicants. In my view the applicants have established that there is a real and well-founded apprehension that the evidence in his possession relating to the funds paid over to the third respondent may be hidden or destroyed or in some manner spirited away by the time the applicants seek to enforce the judgment they hope to obtain against the respondents.[2]

[30] In substantiation of its apprehension that evidence will be hidden or destroyed or in some manner spirited away, the applicant relies in its founding papers on several instances of alleged foul play by the respondent.

[31] In paragraph 26, the applicant avers as follows:

"Viziya has established that Mr Marne Parsons, the fifth respondent, was tasked to develop a scheduling solution. Prior to Collaborit partnering with Viziya. Collabord partnered with the Prometheus Group when Mr Ulrich Ferndale moved from Pometheus to Collaborit. Collaborit thereby gained access to the Prometheus scheduling solution (a rival solution to that of Viziya) by using Mr Ulrich Ferndale's username and password. It is our understanding that Collaborit, and specifically the fifth respondent, used these logon credentials to copy the Prometheus code and to customise/change the code to develop rival solutions to that of Prometheus. I attach as annexure ''JV13" what I believe to be proof of a direct copy of Prometheus' solutions as marketed on Collaborit's website. The mala fides on the part of the respondent is manifest."

[32] The respondent denied these allegations. It pointed out that annexure "JV13" is not a direct copy of a Prometheus solution, but a similar product. The respondent further pointed out that various entities have

developed similar solutions and attached an example of a similar solution developed by another company to its answering affidavit.

[33] Without confirmation by Prometheus that the respondent did in fact copy one of its solutions, the disputed allegation does not confirm mala tides on the part of the respondent.

[34] A further example relied upon by the applicant is the fact that an employee of the respondent, Dolf Maritz, "furtively sat in, and presumably scuppered, our sales pitch to Anglo American”. Vujicic , the deponent to the replying affidavit attaches and refers to contemporaneous notes made by him during the sales pitch as proof of the respondent's conduct. The notes for Friday April 1 2016, however, reveals the following:

"Attended, John Vuji cic, Aleks Vujicic, Dana Jordaan, Jaco Visser, Rainier Rossmann, Johan Wannenburg, Dolf Maritz (Collaborate) ......" (own emphasis)

[35] The note further reveals that although it was clear that Maritz was an employee of the respondent, he apparently told Vujicic that he works for Anglo American. The fact of the matter remains that the applicant was well aware that an employee of the respondent attended the sales pitch. The allegation that he did so "furtively " is not borne out by the facts.

[36] Notwithstanding knowledge of the aforesaid conduct, the applicant's attorneys on 11 December 2015 and only after the contract was terminated by the respondent, addressed a letter to the respondent accusing it of alleged wrongdoing. At that stage the applicant did not harbour any apprehension that the respondent may hide or destroy or spirit away evidence. The relevant paragraph pertaining to the preservation of evidence reads as follows:

''9. We hold instructions to, in due course, analyse all and any transactions you have concluded with these entities (and others of whom our clients becomes aware). We are instructed to seek the setting aside of such agreements. We also hold instructions to claim damages. You are advised to retain all documentation and records in this regard"

[37] The respondent answered to the aforesaid letter on 18 December 2015, denying any wrongdoing and inviting the applicant's attorneys to liaise directly with its attorneys in regard to the matter. The applicant's attorneys did not respond to the aforesaid letter.

[38] The highlight of the applicant's assertion in respect of its apprehension appears in paragraph 55 of the founding affidavit, to wit:

·..... There is also a real risk that, if Collaborit and its directors and the other respondents get wind of this application, that efforts will be made to destroy or hide such documents and material, in an effort to portray as an innocent and lawful competitor. ..."

[39] Reference is once again made to the Prometheus issue and the Anglo American sales pitch and the conclusion that is reached in the ultimate sentence of paragraph 55, reads as follows:

"Our fears that it would spirit away evidence that condemn it as a company that indulges in unlawful competition, is real. "

[40] These fears are a far cry from the request in December 2015 to ''retain" documents. One must bear in mind that the applicant was aware of all the facts underlying its fears in December 2015. The respondent was at that stage also informed of the various interdicts it intends obtaining and actions it intends instituting against the respondent.

[41] Nothing changed from December 2015 until the launching of this application in May 2016.

[42] In the premises, I am not satisfied on the undisputed facts that the applicant has established its alleged reasonable apprehension.

COSTS

[43] Mr Williams SC, counsel for the applicant, requested in his heads of argument that any cost order made herein should include the costs of the abortive hearing on 31 May 2016.

[44] Ms Dippenaar SC, counsel for the respondents, submitted that the application was an abuse of process and justifies the granting of a punitive cost order against the applicant. I do not agree. The mere fact that the applicant did not succeed, does not entail that the application was an abuse of process. No specific facts were brought to my attention to justify a punitive cost order against the applicant.

[45] I am of the view that the normal cost order in favour of the successful party should follow, which costs will include the costs of 31 May 2016.

[46] Both counsel involved in the matter is Senior Counsel and both requested that a cost order should include the costs of Senior

Counsel.

ORDER

[47] In the premises, I grant the following order:

1. The order granted by Mabuse J on 12 May 2016 is set aside.

2. The applicant is ordered to pay the costs of the application, which costs include the costs of 31 May 2016, and the costs of senior counsel.

________________________

N JANSE VAN NIEUWENHUIZEN J

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

APPEARANCES

Counsel for the Applicant: Advocate J.O. Williams SC (082 553 9418)

Instructed by: Hahn & Hahn Attorneys

Ref: Jaco Hamman/eb/O 11697

(012 431 2480)

Counsel for the Respondent: EF Dippenaar SC

(011 263 9000/082 6055547)

Instructed by: De Vries Inc

Ref: No: B Hutchinson/lj/COL 14/0001

(011 775 6100/6102)

[1] See Roamer Watch Co SA and Another v African Textile Distributors also t/a MK Patel Wholesale Merchants and Direct Importers 1980 (2) SA 254 (W) at 273C-274F.

[2] Dabelstein above n5 at 69F-G.