A mechanical engineer and his former employer are locked in a bitter battle over the design of equipment worth millions of rand that is used by diamond mines.
The copyright row, pending in court, is messy and unpolished.
Emile Rocher’s former employer ADP Marine & Modular took him and three other companies — Westarcor Engineering, Hammer Tool Trading and Hammer Tool Tech CC — to the high court in Cape Town.
The bone of contention is a modular plant “widely utilised by diamond mines in the processing of diamondiferous materials”. ADP Marine & Modular obtained an interim order in 2022 to search for and seize evidence from Saldanha-based Westarcor Engineering. The order was confirmed as final in July 2023.
ADP Marine & Modular approached the court asking for permission to access information that was handed to the sheriff of the court for safe keeping, pending the copyright matter hearing. The company said it needed the information to open a criminal case.
A judgment, handed down by the high court in Cape Town on Wednesday, details the drawn-out debacle. Rocher worked for ADP Marine & Modular for 12 years. The company acquired intellectual property and copyright for the design and supply of the MB100 plant, a modular mineral processing design, for about R7m.
According to the judgment, Rocher “acquired intimate knowledge of the applicant’s MB100 plant”.
“As part of his duties, he collaborated closely with [Westarcor Engineering] to further fabricate the applicant’s designs, which resulted in the M70 and MB200. During his tenure, [Rocher] began to work with [Hammer Tool Trading] and [Hammer Tool Tech], who subsequently became competitors of [ADP Marine & Modular] on the supply of modular mineral processing design. [Rocher] became the director of [Hammer Tool Trading],” the judgment reads.
ADP Marine & Modular wants compensation for the alleged misuse of its confidential information and copyright. The company asked the court for permission to use some of the seized documents to lay criminal charges against certain individuals.
“[ADP Marine & Modular] was mindful that, though they were already in possession of the information and documentation seized, they sought to utilise it when criminal charges were filed. However, since it was only provided to it for the purposes of the ongoing civil proceeding, the [company] was not permitted to utilise it as it intended without first seeking the leave of the court,” the judgment reads.
The court ruled that the company’s request did not have a strong legal basis, as the relief sought would add nothing to what had already been granted. The court dismissed the application and ordered ADP Marine & Modular to pay legal costs
However, Rocher and the companies being sued argued that ADP Marine & Modular had already been allowed to preserve the seized information, so there was no need to ask for it again. The court was not persuaded by ADP Marine & Modular’s argument.
“The court order designates the sheriff of the court as the custodian of the seized documents and information, ensuring their preservation. The office of the sheriff is by design an officer of this court, subject to the authority of the court and has a legal duty to it,” the judgment reads.
“Members of the SAPS should have a legal framework and a range of options to explore to obtain or utilise any information and documents they consider necessary during their investigations after a criminal case has been lodged. If a complainant has filed criminal charges, it is sufficient for them to provide a statement and rely on the police's expertise or competency to utilise any legal tools available to them if necessary.”
The court said the police could subpoena someone to appear in court if they were likely to provide useful or relevant information about an alleged offence, even if the offender was unknown — if the person gave that information to the prosecution before the court date.
“Should a need arise, it remains within the right of the SAPS to access any confidential information in the possession of the sheriff of Vredenburg, including any private persons, in pursuit of criminal investigations. The police possess the powers to enter any premises, conduct searches; and seize material or information in pursuit of criminal investigations,” the judgment reads.
“Therefore, I am inclined to agree with the assertion that any attempt to enter into the realm of dictating or directing how the SAPS should conduct their investigations and or what kind of evidence they should gather once a criminal case has been registered, is untenable and lacks sound legal basis.”
The court ruled that the company’s request did not have a strong legal basis, as the relief sought would add nothing to what had already been granted. The court dismissed the application and ordered ADP Marine & Modular to pay legal costs.
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