Mane Source Africa (Private) Limited & Wayne Owen v National Spice Works t/a F. Neil and Sons

### Preamble
Judgment No. SC 96/25
Civil Appeal No. SC 410/25
1
REPORTABLE (96)
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REPORTABLE    (96)

MANE     SOURCE     AFRICA     (PRIVATE)     LIMITED     (2) WAYNE   OWEN

v

NATIONAL     SPICE     WORKS     t/a      F. NEIL     AND     SONS

SUPREME COURT OF ZIMBABWE

MATHONSI JA, CHIWESHE JA, & CHITAKUNYE JA

HARARE: 19 SEPTEMBER 2025

T. L. Mapuranga, for the appellants

D. Tivadar, for the respondent

MATHONSI JA:	At the instance of the respondent who lamented that the second appellant resigned from its employ as general manager only to set up the first appellant and pitch camp in Granite-side from where they carried out a competing business of marketing spice products, the High Court (the court a quo) granted an Anton Piller Order in favour of the respondent on 20 October 2023.

The respondent`s ex parte application for an Anton Piller order yielded the following interim relief granted by Chikowero J:

“TERMS OF FINAL ORDER SOUGHT.

That you show cause to this Honourable Court why a final order should not be made in the following terms-

The applicant shall have access to the evidence obtained pursuant to the interim relief and held by the Sheriff.

INTERIM RELIEF GRANTED.

Pending determination of this matter, the applicant is granted the following relief:

First  and second respondents, its officials, assigns or agents on whom service is effected in terms of this order are ordered to allow the Sheriff, Mr T. Garabga  (the Supervising Attorney) together with Honourable Jonathan Samukange, the applicant`s attorney and a nominated representative of the applicant to enter the premises immediately being 9 Kelvin Road, North Harare, and any facilities and/or vehicles on such premises for the purposes of searching for and delivering to the Sheriff all the goods listed in Annexure ‘F’ of the founding affidavit as well as all documents, invoices, consignment notes, bills of entry, certificates of origin and all correspondence relating to the following:

(i) Sakoa Trading (Pty) Ltd

(ii) Exim International (Pty) Ltd

The first and second respondents, its officials, assigns or agents on whom service is effected are hereby ordered to disclose to the Sheriff and the Supervising Attorney the precise whereabouts of all correspondence, invoices, receipts, consignment notes, and all the documents whatsoever relating to any transactions involving Sakoa Trading (Pty) Ltd or Exim International (Pty) Ltd and to  further allow the Sheriff access to open any locked cabinets, draws (sic), rooms or offices where these items are stored.

First and second respondents, their officials, assigns or agents on whom service is affected in terms of this order are further ordered to permit the said persons to remain on the premises until the search is completed and if necessary, to re-enter the premises on the same or following day to complete the search.

The Supervising Attorney together with the Sheriff shall make a list of the recovered and removed goods, correspondence, invoices, receipts consignment notes, and all other documents recovered in terms of this order.  A copy of the list shall be handed by the Supervising Attorney to the applicant`s attorney and to the first and respondents or to the persons referred to in para 2 above, if present, and a copy shall be retained by the Sheriff.

In the event that any of the items listed in paras 1 and 2 exist, in/on computer readable from whether in servers or hard drives, first and second respondents and their officials are ordered to forth with provide the sheriff with effective access to the computers and all necessary passwords to enable them to be searched and cause the listed items to be printed out, or copied electronically on hard drives, disks or flash drives.  A copy of these items (whether electronic copy or a print out) is to be given to the Sheriff or displayed on the computer screen so that it may be read and copied by him.

First and second respondents be and are hereby ordered to grant the applicant access to the first and second respondents` email accounts and all correspondence between the first and or second respondent, its officials, agents and assigns and the following:

Sakoa Trading  (Pty) Ltd)

Exim International (Pty) Ltd.

Paul Neil

Luke Neill

Robert Liddle

Gavin Dick

Mathew Costello

Cheryl Ann Costello

That a temporary interdict be issued pending the determination of the main suit restraining the respondents, their agents or assigns from-

destroying or concealing or disposing of (i) the goods identified in Annexure F and (ii) the documentation referred to in para 2 of this order.

costs of suit to be in the cause.

The listed items taken into possession by the Sheriff pursuant to this order shall be retained by him until the court orders otherwise.  Save as provided hereinafter, no person shall be entitled to inspect any of the items taken into possession by the Sheriff nor shall any copies of such documents be made.  Provided that pending the return day and for this sole purpose of satisfying himself that the inventory correctly reflects the items seized, the applicant, first and second respondents and their attorneys shall be entitled to inspect the items in the Sheriff`s possession.

On the return day there shall be placed before the Court the report of the Supervising Attorney with proof that a copy thereof has been served on the applicant`s attorney and on first and second respondents or their attorney”

The Anton Piller order was executed by the Sheriff on 30 October 2023 who, in the process, seized certain items from the appellants` premises in the presence of Ticharwa Garabga, the appointed Supervising Attorney.  The latter also submitted to the court a quo a report dated 2 November 2023.

It is the confirmation of the provisional order embodying the Anton Piller relief which was strongly contested by the appellants.  Notwithstanding that contestation, the court a quo delivered judgment on 28 May 2025 confirming the provisional order.  This appeal is against that judgment.

The court holds that an Anton Piller order allows for a search of a party`s premises and seizure of documents and evidence with the primary goal of securing and preserving same against the predatory instincts of that party to destroy, conceal or place it outside the jurisdiction of the court.  To the extent that the relief is preparatory in nature allowing relevant evidence to be secured for use at the forthcoming trial, and that indeed such evidence was uncovered at the execution of the Anton Piller order, the respondent made out a good case for its grant and confirmation.

The court further holds that the respondent satisfied all the requirements for the Anton Piller order to be afforded. Once the relief was afforded, the documents and evidence yielded by execution are indisputably relevant to the pursuit of the respondent`s causes of action against the appellants.  The court a quo cannot be faulted for granting the relief sought and confirming it.  The appeal is demonstrably without merit and should accordingly suffer the fate of such appeals with costs. Accordingly, after hearing submissions from counsel, the Court dismissed the appeal with costs and stated that the reasons for doing so would follow in due course.

BACKGROUND FACTS

The first appellant is a company incorporated in terms of the laws of Zimbabwe run by the second appellant and has an outlet in Granite-side, Harare where it sells spice products and sausage casings.  The respondent is also an incorporation which has been in the business of marketing spices and like products including packaging additives and sausage casings in Zimbabwe for over six decades.

Until his voluntary resignation on 2 November 2020, the second appellant was employed by the respondent as its General Manager.  In that capacity he directed the respondent`s business of importing, marketing and selling spices and other products to butcheries in Zimbabwe on behalf of Exim International (Pty) Ltd (“Exim”).  The spices in question are used in the preparation of beef, pork, chicken, lamb and boerewors sausages.

The respondent has an exclusive relationship with Exim which has been supplying it with the spices and related products for several years in terms of an exclusive distributorship agreement.  Significantly, as the respondent`s General Manager, it is the second appellant who signed a distribution and commission rebate agreement with Exim and a Mauritian based company called African Spice Traders Limited on 23 June 2017.  In terms thereof, Exim granted the respondent the sole rights to sell its products in Zimbabwe.  On 7 August 2020, the second appellant again signed Addendum No 1 to the agreement with Exim on behalf of the respondent.

In terms of that addendum the respondent committed to purchasing at least ZAR 1 200 000 worth of products a month from the supplier in consideration of the exclusive right to distribute the products in Zimbabwe.  The tenure of the agreement was extended to 20 June 2027 by Addendum No 2 executed on 9 February 2022.

Meanwhile, as already stated, the second appellant resigned from the employ of the respondent on 2 November 2020 only to set up a business in the name of the first appellant dealing in the same Exim spice products. The respondent soon discovered that the appellants were also enticing its main clients like the Surrey Group to transfer their custom from it to them.  The labels of the products revealed that they were packaged for a company known as Sakoa Trading (“Sakoa”).

THE APPLICATION

On 10 October 2023, the respondent filed an ex parte application for an Anton Piller order.  Its case was that it had a cause of action against the appellants for knowingly interfering with the respondent’s contractual rights, causing significant financial losses to the respondent and passing off its supplier’s spice products.  In motivating the application, the respondent posited that it required access to documentation of the products as well as evidence of the exact products being distributed by the appellants to be used in litigation against the appellants.

The respondent contended that the appellants had vital evidence in their possession which showed that the products being sold by them were Exim products packaged in counterfeit Sakoa packages.  In the respondent’s view, access to the appellants’ emails, documents and records was needed to demonstrate the deliberate interference with its contractual rights and the intent to cause economic loss.

The respondent argued that the relevant evidence would be contained in correspondence with Paul Neill the CEO of Exim, Luke Neill Exim’s head of sales, Robert Liddle, Exim’s senior sales manager, Gavin Dick, a former employee of the respondent who joined the first appellant, Matthew Costello, a director of both the first appellant and Sakoa, and Cherry Ann Costello, also a director of both the first appellant and Sakoa.

The respondent asserted that it had a well – founded apprehension that the evidence it required would be destroyed or concealed by the appellants if they became aware of the impending litigation. The court a quo was persuaded by the respondent’s case and on 20 October 2023 it granted the provisional order reproduced above.

According to the report of Ticharwa Garabga, the appointed “Supervising Attorney” who supervised the execution of the court order:

“13. There were about 3 pallets in the 1st respondent’s warehouse on which were wrapped and packed Exim International (Pty) Ltd products. These were clearly labelled and could not be mistaken at all.”

The confirmation of the provisional order was vehemently opposed by the appellants.  The basis for opposition was that the respondent had no cause of action against them given that they were not privy to the agreement entered into between the respondent and Exim.  Their position was that the respondent had no monopoly in the distribution of Exim products in Zimbabwe.  Apart from that, the appellants surprisingly maintained that they were not importing and distributing Exim products but those of Sakoa.

On the intended suit under passing off, the appellants disputed that the respondent could successfully sue them based on that because it had no intellectual property rights of its own as it was not the owner of the products which belonged to Exim.  Insisting that the respondent was trying to prevent lawful competition, the appellants also took the view that the fact that the second appellant was once employed as the General Manager of the respondent was irrelevant.

In considering the matter on the return date, the court a quo found that the appellants did not deny that their listed products matched the respondent’s popular description.  It further found that the appellants did not deny that their products are packed in the same weight as those of the respondent, have a label in identical size and font as those of the respondent, have the same ingredients description and other information and have the same Halaal certification number as the respondent’s which number is issued to Exim and not to Sakoa or the first appellant.

The court a quo found that, prima facie, the respondent had a case against the appellants which it was entitled to prosecute and that the appellants were indeed in possession of the specific and specified documents and things that constitute vital evidence to substantiate the respondent’s cause of action.  It was of the view that there was a real and well–founded apprehension that the evidence could be hidden, destroyed or spirited away by the time the case came to discovery or trial stage.

It was the view of the court a quo that the respondent had causes of action against the appellants including interference with contractual rights, the Aquilian liability for economic loss and passing off.  It reasoned that there was nothing to suggest that the respondent intended to monopolize the distribution of spices generally but that it sought to protect its rights as the sole distributor of Exim brands. It found that the fact that three pallets full of clearly marked Exim products were discovered at the appellant’s warehouse pointed to the existence of a cause of action especially as no evidence of a contract with Sakoa or any importing documents was produced to refute the allegation of passing off.

The court a quo concluded that no prejudice on the part of appellants was shown if the evidence procured during the execution of the Anton Piller order which was under the control of the Sheriff is inspected.   It accordingly granted the final order permitting the respondent to have access to that evidence.

THE APPEAL

The appellants were irked by the judgement of the court a quo.  They appealed to this Court on the following grounds:

“GROUNDS OF APPEAL

The court a quo grossly erred and misdirected itself when it proceeded to make findings and conclusions that the respondent has a cause of action against the appellants when such a cause could and had not been established in fact (factually) and at law.

The court a quo further erred and misdirected itself when it failed to consider that the principle of passing off which was heavily relied on by the respondents (sic) was unsustainable as a cause of action against the appellants since the respondents (sic) do not own the product in question.

The court a quo further grossly erred and misdirected itself when it proceeded to make findings and conclusions that the appellant had interfered with the contractual obligations of the respondents (sic).  The court failed to consider the factual and legal position that the respondent is an agent of the distributor and thus could not enforce any rights that had accrued to the distributor in terms of the agreement.

The court further erred and misdirected itself it made (sic) a conclusion that the appellants had failed to establish the basis upon which the evidence could be withheld when the respondents had managed to establish that the respondent had no a cause of action against them which issue was dispositive of the application (sic).

RELIEF SOUGHT

The appellant(s) seek the following relief:

That the appeal be allowed with costs.

The judgement of the court a quo in HCH 6558/23 handed down in judgement number HH 322/25 be and is hereby set aside and substituted by the following:-

The application for an Antony (sic) Piller Order be and is hereby dismissed.

The provisional order of this Honorable Court (per Chikowero J) granted in HCH 6558/23 be and is hereby discharged.

The applicant is ordered to pay costs on a legal practitioner/client scale.”

At the commencement of the hearing of the appeal Mr Mapuranga, who appeared for the appellants, made an application to amend the grounds of appeal. A notice of the amendment had been given.  He sought to amend the grounds by the deletion of grounds 1 and 4 and the introduction of a new ground of appeal.  Although Mr Tivadar for the respondent opposed the application, the Court granted it.  Grounds 1 and 4 were deleted and the following ground of appeal was added:

“The court a quo erred and misdirected itself by finding that the respondent had the cause of action of interference with a contract on allegations that the appellants were competing with the respondent in supplying a spice under a different get up when this is conduct in furtherance of competition and which is protected and encouraged under the Competition Act [Chapter 14:28].”

The remaining grounds of appeal may be three in number but there is only one issue for determination in this appeal.  It is whether or not the court a quo erred in finding that the respondent had a cause of action against the appellants.

Mr Mapuranga motivated the appeal by adopting what he called a two-rung approach.  In the first rung, he submitted that the respondent does not have a cause of action based on passing off because it is not the supplier or distributor of the spice products.  Counsel submitted that the trade mark and get up were created by Exim which is the supplier while the distributor in terms of the agreement is another foreign based company by the name of African Spice Traders Limited.  According to counsel, the respondent is only an agent with no right to sue and should have requested Exim to litigate against the appellants if so inclined.

Relying on the authority of Polaris Zimbabwe (Pvt) Ltd v Zapchem Detergent Manufacturers CC 2004 (2) ZLR 351 (S) Mr Mapuranga submitted that only the manufacturer and not the distributing agent acquires the right to the product and to sue on it.  The goodwill of the spice products that has been established, so it was argued, cannot be attributed to the respondent but the supplier.

In the second rung, Mr Mapuranga submitted that the common law does not exist to create monopolies but protects competition and that the Competition Act allows competition.  In his view, there is no delict preventing competition and there is no law that creates monopoly.  On the alleged interference with contractual rights, counsel for the appellants conceded that there is in existence a claim in our law under that head but maintained that the interference by the appellants is not unlawful.

Per contra, Mr Tivadar for the respondent submitted that the appellants criticized the judgment of the court a quo in its findings on passing off and interference with contractual rights but said nothing about the cause of action based on liability for economic loss.  For that reason, he argued, the appeal cannot succeed as it does not challenge the finding on that cause of action.

On the claim based on passing off, Mr Tivadar submitted that it is interesting to note that the appellants do not deny that all the other requirements of an Anton Piller order were satisfied.  He asserted that the appellants accept that they have relevant documents and that there is a risk that they may hide or destroy those documents if the Anton Piller order is not granted.

Counsel submitted that the appellants’ argument that it is the manufacturer of the products and not the respondent that has established goodwill in the market cannot succeed.  This is so because, so it was argued, the appellants admitted that the respondent’s business has considerable goodwill established over decades.  The admission so made has significant consequences as it would be incompetent for a party which made the admission to adduce evidence contradicting it.

Mr Tivadar submitted that the appellants’ exposition of the law on passing off is incorrect.  He cited this Court’s judgment in the case of F.W Woolworth & Co (Zimbabwe) (Pvt) Ltd v The W. Store & Anor 1998 (2) ZLR 402 in making the point that the action for passing off protects a business against a misrepresentation of a particular kind, that is, that the business, goods or services of the presenter is that of the other.  In counsel’s view passing off is not restricted to protecting goodwill attaching to product or goods but extends to the protection of the business, services, trade course and business connection.  He went on to state that considering that the respondent alone has a business connection to Exim and its products, it has a clear interest that should be protected by passing off.

Mr Tivadar disputed that the respondent is a mere distributor of the spice products because it labels the products under its own name, for instance, “F. NEILL SUPREME BRAAI (EXTRA COLOR).”  According to the respondent, it repackages the products and sells them under its own name.

On the cause of action based on the alleged interference with contractual rights, contrary to the view that the cause cannot be established in the absence of an allegation of wrongfulness, Mr Tivadar submitted that the respondent indeed alleged “wrongful and faulty conduct” on the part of the appellants.  He added that apart from alleging it, the respondent clearly established wrongfulness especially as the second appellant has always known of the respondent’s exclusive right to import Exim products in Zimbabwe.

THE LAW

The remedy of an Anton Piller order has its parentage in the seminal English case of Anton Piller K.G. v Manufacturing Processes Ltd & Ors [1976] All ER779 (CA).  In that case, the Court of Appeal confirmed and consolidated the English practice of granting such orders.  The brief facts of that case were that the defendants, an English company and its two directors, were the United Kingdom agents of the plaintiffs, German manufacturers of frequency converters for computers.  The plaintiffs claimed that the defendants were in secret communication with other German manufacturers and were giving them confidential information about the plaintiffs’ power units and details of a new converter, the disclosure of which could be most damaging to the plaintiffs.

In order to prevent the disposal by the defendants, before discovery in an action, of documents in their possession relating to the plaintiffs’ machines or designs, the plaintiffs applied ex parte for an interim injunction to, inter alia, enter the defendants’ premises to inspect all such documents and to remove them into the custody of their lawyers.  On the plaintiffs’ undertaking to issue a writ forthwith Brightman J granted the interim injunction but refused to order inspection or removal of documents.

On the plaintiffs’ ex parte appeal LORD DENNING MR, with the concurrence of two other judges, held, allowing the appeal, that in most exceptional circumstances, where plaintiffs had a very strong prima facie case, actual or potential damage to them was very serious and there was clear evidence that defendants possessed vital material which they might destroy or dispose of so as to defeat the ends of justice before any application inter parties could be made, the court had inherent jurisdiction to order defendants to “permit” plaintiffs` representatives to enter defendants’ premises to inspect and remove such material. It was held further that, in exceptional circumstances, the court was justified in making the order sought on the plaintiffs` ex parte application.

An Anton Piller order, by its very nature, is interlocutory and always open to revision by a court of competent jurisdiction.  According to the learned authors Winsen, Cilliers and Loots, The Civil Practice of the Supreme Court of South Africa, 4th ed at p 1092:

“The first reported case in which an Anton Piller order was granted by a South African court was Roamer Watch Co SA & Anor v African Textile Distributors also t/a MK Patel Wholesale Merchants & Direct Imposters 1980(2) SA 254 (W) although prior to that a large number of such orders had already been granted in unreported cases.”

In South Africa, the Appellate Division dealt with Anton Piller orders for the first time and approved them in Universal City Studios  Inc & Ors v Network Video (Pty) Pvt 1989 (2) SA 734 (A).  It held that, in appropriate circumstances, the court has the power to grant ex parte, and where necessary, in camera, an order designed pendente lite to preserve evidence in the possession of the respondent as it was not beyond the inherent powers of the court to grant such an order.

At 755 A-C, Corbett JA stated that such an order would be granted:

“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), and 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... and the applicant asks the court to make an order designed to preserve the evidence in some way.”

It is important to highlight that an order of that nature is only granted to preserve specific evidence for trial not for purpose of creating a cause of action.  Untrammeled by resistance against the remedy of an Anton Piller order, the Zimbabwean Courts have also confirmed and endorsed it as a modern legal remedy meant to cater for modern problems in the prosecution of civil actions even though recognizing that the court has to proceed with caution and impose safeguards to protect the rights of the party against whom the relief is sought.  See Cooper v Leslie & Ors 2000(1) ZLR 14(H); Stanbic Nominees (Pvt) Ltd & Anor v Remo Investment Brokers (Pvt) Ltd 2013 (2) ZLR 413 (H).

What emerges from the authorities is that the legal pedigree for the search and seizure orders or Anton Piller orders has evolved certain rules and guidelines for such applications, originally recommended by Cilliers AJ in Roamer Watch Co SA & Anor, supra, namely that:

The applicant must make out a prima facie case against the party against whom the order is sought.  It has been said that the applicant must not be on a fishing expedition, which is to say that the applicant’s case should not depend entirely on the evidence sought to be seized from the respondent’s possession.

The remedy must be the only practicable means of protecting the applicant’s rights. Where the applicant can secure the same evidence by means other than ex parte, the relief should not be permitted.

The evidence to be attached must be relevant to the applicant’s case.  Indeed such evidence must be absolutely necessary for the prosecution of the claim.

It must be clear that the incriminating evidence is in the possession of the respondent. While it may not be easy to establish with certainty that the respondent has possession, at least there should be good ground for believing that he, she or it has such possession.

Reasons for the belief that the evidence will be spirited away, concealed or destroyed must be given.  In other words, there must be a well-founded apprehension that notifying the respondent will have an adverse effect.  At the end of the day the court always retains the discretion whether or not to grant this extraordinary relief ex parte.  In doing so, the Court weighs the importance and value of the interests the applicant seeks to protect against the prejudice the respondent may suffer as a result of an ex parte order for attachment and or removal of the evidence.

The order should be restricted to only that which is necessary for the preservation of the evidence sought to be preserved for future purposes of litigation.  Care must be taken not to afford the applicant the substantive relief which he, she or it may be entitled to at a later stage after affording the respondent an opportunity to be heard.

Considering that Anton Piller orders have serious potential for harm, they must be meticulously executed according to the strict letter of the court order.  The terms of the order must not be exceeded and execution must, as much as possible, be done under the watchful eye of a supervising legal practitioner appointed by the court.

Accordingly, the procedural safeguards of this type of remedy are that the court order has to be specific, detailed and complete with the appointment of a supervising legal practitioner.  It must be served by the Sheriff of the Court.  There is always a provision, where the order is granted ex parte, for the respondent to anticipate it in case it is unduly burdensome on him, her or it.

The principles relating to the claim under the rubric of passing off were set out by this Court in F.W. Woolworth & Co (Zimbabwe) (Pvt) Ltd v The W. Store & Anor 1998 (2) ZLR 402 (S) at 404D-E, quoting with approval Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) at 947E-948B, as:

“The essence of an action for passing off is to protect a business against a misrepresentation of a particular kind, namely that the business, goods or services of the representor is that of the plaintiff or is associated therewith….  In other words, it protects against deception as to a trade source or to a business connection….  Misrepresentations of this kind can be committed only in relation to a business that has goodwill or a drawing power…. Goodwill is the totality of attributes that lure or entice clients or potential clients to support a particular business….”

In Polaris Zimbabwe (Pvt) Ltd v Zapchem Detergent Manufactures, supra, at 353B-C this Court upheld the findings of the court a quo that:

“A trader who has the sole right to sell and distribute in South Africa a product which is packed by a foreign manufacturer under his own name, and who sells and distributes the product completely unaltered without adding anything to the name or get-up may not sue on the ground of passing off if a rival trader imports and distributes the same product in the same get-up. Since the trade name and get-up distinguish the manufacturer’s business and products, only the manufacturer, and not the distributing agent, acquires the right to the distinctive mark.  On the other hand, where such an agent (bare licencee) is not ‘a mere conduit for the goods of another’ but ‘markets its own product under its own name,’ he in principle has locus standi to institute an action for passing off.  In this case the bare licencee indeed acquires his own right to the distinctive mark.” (Underlining is mine)

Regarding the claim for interference with contractual rights, our law recognizes an action for intentional inducement of a breach of contract.  In fact, the intentional inducement of a breach of contract is an actionable wrong.  An interference with contractual rights constitutes a delict in appropriate circumstances.  See Dantex Investments Holdings (Pty) Ltd v Brenner & Ors NNO 1989 (1) SA 390 (AD) at 395 D, Trojan Nickel Mine Ltd v Reserve Bank of Zimbabwe HH 169/13 at p 6.

This case also involves a claim based on the Aquilian liability for economic loss, a remedy which is also available in our law.  In such a claim, it must be established that the defendant committed a wrongful act, that the plaintiff suffered patrimonial loss capable of assessment, that the defendant’s actions caused the plaintiff to suffer loss which is not remote and that the loss in question is imputable on the fault of the defendant.  See Zimbabwe Banking Corporation Ltd v Pyramid Motor Corporation (Pvt) Ltd 1985 (1) ZLR 358 (S).

DETERMINATION OF THE APPEAL

The respondent has lined up three distinct claims against the appellants based on passing off, interference with contractual rights and liability for economic loss.  The appellants have not challenged the court a quo’s listing of the latter claim as being available for the respondent to make.  I therefore agree with Mr Tivadar for the respondent that the omission by the appellants to advert to the claim based on liability for economic loss goes a long way in showing that the appellants have not discharged the onus on them, as found by the court a quo, to “show good cause why the evidence obtained pursuant to the Anton Piller order should not be available to the applicant.”

The matter does not end there.  The court a quo made a factual finding that the appellants’ assertion that they were lawfully importing Sakoa product into Zimbabwe and not Exim products was directly contradicted by the Supervising Attorney’s report to the effect that three pallets wrapped and packed with Exim products were discovered at the appellants’ warehouse.  The court a quo found that the issue was not addressed by the appellants at all                      a quo.  It occurs to me that it was upon a realization that the appellants could not possibly escape those findings by the court a quo that Mr Mapuranga for the appellants completely abandoned the appellants’ original assertion that they were only dealing in Sakoa products and not Exim products.

Instead, Mr Mapuranga sought to motivate the appeal on the basis that the appellants were indeed importing Exim products but that they were entitled to do so by the Competition Act which encourages competition.  Counsel also sought to argue that their dealing in Exim products was not actionable on the two bases that they are not bound by the agreement entered into between the respondent and Exim as well as that the respondent did not have a monopoly over the Exim products.

That approach creates serious problems for the appellants.  To begin with, sight must not be lost of the fact that the remedy of an Anton Piller order is afforded to a party upon showing a prima facie case.  In other words, when the court determines whether good cause has been shown for denying a successful applicant of an Anton Piller order the right to retain the evidence so obtained for use at the impending trial, it does not determine the merits of the action.  It is enough that the respondent has a valid cause of action which it is entitled to pursue using the evidence procured upon the execution of the Anton Piller order.  As already stated, the order is interlocutory.

The fact that the appellants intend to contest the claim based on passing off on the grounds, inter alia, that it is entitled to compete, is of no moment for the present purposes.  It should suffice that the respondent has a right to exclusive importation and distribution of Exim products, which it markets as its own.  For that reason, it has locus standi to institute an action for passing off.  See Polaris case, supra. Whether it will succeed or not is yet to be determined but is certainly not the subject of the present inquiry.

The same principle applies to the claim based on interference with contractual rights.  The appellants would want the Court to deal with the dispute in abstract and ignore its factual background.  To the knowledge of the appellants, the respondent acquired exclusive rights to import Exim products.  In fact, it is the second appellant who signed the agreement in question on behalf of the respondent.  Having done so, the second appellant abandoned ship and set out to unfairly compete with the respondent.  It enticed the respondent’s employees and clients before inducing Exim to breach its agreement with the respondent.  Surely the respondent is entitled to pursue its claims against the appellants.

By the same token, the respondent is entitled to access to the evidence obtained upon execution of the Anton Piller order for use at the forthcoming trial.

DISPOSITION

The respondent made out a good case for the grant of an Anton Piller order ex parte on the basis of what appeared like unlawful competition by the appellants.  It was able to show, on a prima facie basis, that it has a cause of action against the appellants for passing off of products it has an exclusive right to import and market in Zimbabwe.  In the exercise of its discretion the court a quo granted the Anton Piller order.

Upon its execution, damning evidence was uncovered pointing to the appellants’ importation and marketing of the same products for which the respondent enjoys exclusivity.  For the successful prosecution of the claims for passing off and interference with contractual rights, the appellants having been aware of those rights in terms of the agreement between the respondent and Exim, the respondent is entitled to preservation of the evidence obtained through execution of the Anton Piller order.  The respondent is also entitled to preservation of the evidence for the prosecution of the claim based on the Aquilian claim for economic loss.

Upon the successful execution of the order, the onus shifted to the appellants to show cause why the respondent was not entitled to access to that evidence.  They failed to discharge the onus.  The court a quo cannot be faulted for coming to that conclusion.

The appeal is demonstrably without merit.  It ought to fail.  There is no reason why the sanction of the costs of it should not be directed at the appellants.  It is for these reasons that the Court dismissed the appeal with costs.

CHIWESHE JA	:	I agree

CHITAKUNYE JA	:	I agree

Messrs James Majatame Attorneys at Law, appellants’ legal practitioners.

Messrs Venturas & Samukange, respondent’s legal practitioners.