William Gwata v Mashonaland Tobacco Company (Pvt) Ltd and The Sheriff of Zimbabwe

The Applicant claimed he invented engineering drawings for a Sadza Cooking machine (the "Gwatamatic machine") and enjoyed copyright over these drawings. The first Respondent (Mashonaland Tobacco Company) and Chinhoyi University of Technology (former second respondent) approached the Applicant to procure the machine. The Applicant discovered that the Respondents were manufacturing the Sadza Cooking machine and alleged they were infringing his copyright. He obtained a provisional Anton Piller order to preserve evidence. Upon execution of the order, no evidence was found at the former second respondent's premises, but at the first Respondent's premises, the Sadza Cooking machine was attached and certain parts extracted. The first Respondent claimed it purchased the machine from Becaquip Investments (Pvt) Ltd in 2020 after failing to reach an agreement with the Applicant, and that it was in the tobacco business, not manufacturing Sadza Cooking machines. The Applicant withdrew the matter against the second respondent.

• Whether the Applicant established that the engineering drawings were his original works entitled to copyright protection under s 10(1) of the Copyright and Neighbouring Rights Act
• Whether the Applicant satisfied the requirements for an Anton Piller order under s 57 of the Copyright and Neighbouring Rights Act
• Whether the Applicant established a prima facie cause of action against the Respondent
• Whether the provisional Anton Piller order should be confirmed

a) The Provisional Order was discharged. b) The Applicant and the second respondent were ordered to return all seized items to the first Respondent. c) The Applicant was ordered to bear costs of suit on an attorney and client scale.

To obtain confirmation of an Anton Piller order for copyright infringement, an applicant must establish a prima facie cause of action, which includes proving that the works claimed are original works of the applicant. Where the date of creation of the allegedly infringed works is central to determining originality and priority - particularly where a respondent claims prior acquisition - the applicant's failure to establish and prove the date of authorship is fatal to the application. Without such proof, the applicant fails to satisfy the requirement under s 57(1)(a) of the Copyright and Neighbouring Rights Act that he has a cause of action which he intends to pursue. Anton Piller orders are drastic remedies that should only be confirmed in exceptional circumstances where sufficient cogent evidence is presented.

The court observed that the Applicant's failure to specify the date for invention of the drawings throughout the proceedings appeared to be a calculated strategy against competitors, noting that mentioning such a date is likely to expose the applicant against his competitors. The court remarked that the Applicant had a responsibility to put his house in order before approaching the court, and that confirming a Provisional Order in the absence of critical evidence would not be just. The court emphasized that Anton Piller relief, if used indiscriminately, may become an instrument of oppression, and courts must proceed with caution and impose safeguards to protect the rights of parties against whom such relief is sought.

This case establishes important principles regarding the grant and confirmation of Anton Piller orders in Zimbabwean copyright law. It emphasizes that applicants must establish originality of works with sufficient particularity, including crucial details such as the date of creation, particularly where the respondent claims prior acquisition. The case reinforces that Anton Piller orders are extraordinary remedies that require cogent evidence and should not be granted or confirmed lightly. The imposition of attorney and client costs serves as a deterrent against frivolous applications for such drastic relief. The judgment affirms the court's adherence to the requirements set out in s 57 of the Copyright and Neighbouring Rights Act and applies the principles from Cooper v Leslie regarding the careful exercise of discretion in granting Anton Piller orders.