About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2018
>>
[2018] ZAECPEHC 12
|
|
Buttcat Boat Builders (Pty) Ltd and Another v Arvesco 119 (Pty) Ltd t/a Carrycat and Another (1155/2017) [2018] ZAECPEHC 12 (13 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 1155/
2017
Heard: 7 December
2017
Delivered: 13
March 2018
In
the matter between
BUTTCAT
BOAT BUILDERS (PTY)
LTD
First Applicant
NITOFKO
(PTY) LTD t/a
NAUTI-TECH
Second Applicant
And
ARVESCO
119 (PTY) LTD t/a
CARRYCAT
First Respondent
DAWIE
SCHOLTZ
Second Respondent
JUDGMENT
GOOSEN,
J.
[1]
The
applicants brought an application for access to documents in terms of
the Promotion of Access to Information Act, Act 2 of 2000
(hereinafter ‘PAIA’). They sought access to a range of
documents, including drawings, plans, sketches, designs and
photographs relating to the manufacture of ski boat hulls. The
respondents opposed the application. The defence raised is that
the
respondents do not have in their possession the documents sought by
the applicants. The applicants accordingly did not pursue
the relief
sought in the notion of motion, save that they persisted in seeking a
costs order against the respondents.
[2]
In
the light of this it is necessary to briefly outline the background
and to examine the circumstances giving rise to the application.
[3]
The
first applicant is the manufacturer of catamaran ski boats known as
the ‘Butt Cat’. It owns the intellectual property
rights
relating to the hull design of all Butt Cat ski boats. The second
applicant’s business involves the installation of
fittings,
railings, electronic motors and steering systems to the Butt Cat
hulls and supplies ready to operate ski boats to the
market.
[4]
During
2012 the second respondent utilised one of first applicant’s
Butt Cat hulls as a plug from which he produced a mould.
This mould
was then used to manufacture hulls. A top structure was fitted to the
hulls and the ski boat was marketed as a ‘Carry
Cat’ ski
boat. As a result of this the first applicant’s attorney wrote
to the second respondent alleging that the
second respondent was
breaching the first applicant’s intellectual property rights.
The dispute was resolved during October
2013 when the infringing
mould was destroyed.
[5]
The
respondents continued to manufacture ski boats. During 2016 the first
applicant became aware of Carry Cat ski boats being sold
which,
according to it, bore a striking resemblance to the Butt Cat hulls
produced by the first respondent.
[6]
On
30 November 2016 the applicants, via their attorney and under cover
of a detailed letter setting out the background, addressed
a request
for access to a record of a private body in terms of s 53 (1) of
PAIA. The documents sought are those detailed in the
notice of motion
in this application.
[7]
On
20 December 2016 the respondents’ attorney replied to the
request. The response takes issue with several ancillary issues
raised in the covering letter and asserts that the request is
‘confusing’. The ‘ancillary’ issues concern
the relationship between the two applicants and the circumstances in
which they came to own the intellectual property concerned.
The
letter even raises the question as to the nature of the firm Randell
& associates, the applicants’ attorneys. Importantly,
the
letter in reply does not address the substance of the request for
access to the records.
[8]
The
applicants’ attorneys responded to the letter in detail,
providing information, inter alia, relating to the relationship
between the applicants. The letter concludes with the assertion that
the respondents are obliged to comply with PAIA and that the
applicants will, failing provision of the requested information,
approach a court for appropriate relief.
[9]
This
letter elicited further correspondence from the respondents’
attorney. In a lengthy letter dated 8 February 2017 the
attorneys
took the stance that the applicants are competitors of the
respondents and that the applicants are not entitled to access
to the
information sought. The attorneys stated further that the applicants
had failed to provide documents requested by the respondents
which
would establish the applicants’ rights to intellectual
property. The letter then deals with the underlying merits of
the
dispute, contending that the matter was resolved in 2013. An
invitation was extended to the applicants’ attorney to inspect
“a provisional comparative diagram” which would establish
that the hull design differs from the Butt Cat hull.
[10]
The
applicants thereafter launched this application on 31 March 2017. An
answering affidavit was filed in May 2017. The affidavit
deals with
the background issues referred to above and addresses certain aspects
of the merits of the applicants’ allegation
of passing-off. In
regard to the substance of the relief sought, namely the production
of certain documents, the second respondent
states that:
12.2
Neither the First Respondent nor I are in possession of any of the
documents sought by the Applicants.
The documents which the
Applicants seek are drawings, templates, sketches, notes, photographs
and plans which they allege were
used in the design of the Carrycat
670 and 760.
12.3
Neither First Respondent nor I generated any of the documents
referred to in the Notice of Motion.
We have never been in possession
of any such documents. Our attorney made the tender in his letter
dated 8 February 2017 (annexure
“M” to the founding
affidavit) on our instructions. It was a
bona
fide
tender and in response to Applicants’ request dated 30 November
2016 (annexure “G”) to the founding affidavit.
This is
all that the Respondents could produce by way of documentation. The
Applicants’ attorney did not accept the invitation
to inspect.
The Respondents have therefore made a full disclosure well before
this application was launched.
[11]
The
applicants filed a replying affidavit in which they cast doubt upon
the assertion by the respondents that they were never in
possession
of documents required for the manufacture of ski boat hulls. In
regard the respondents ‘defence’ the following
is said:
The Applicants are now faced
with the respondents attesting under oath that they do not possess
any documents. The Respondents should
have done this in terms of the
imperative set out in section 55 of PAIA. Since they failed to do
this, section 58 became operative
and the Respondents were deemed to
have refused to furnish these documents. Against this refusal, the
Applicants had little choice
but to initiate these proceedings. The
Respondents have only now by way of an answering affidavit gone under
oath as envisaged
in section 55. They have attested that no documents
are available and none ever existed. The Applicants have little
choice but
to accept that explanation – a scenario which points
ineluctably to direct and unlawful copying. It has also rendered the
main relief in the application academic. This would leave only the
question of costs.
[12]
This
is the central issue to be decided. Although the respondents advance
an argument that the application is defective because
the applicants
have not established their
locus
standi
entitling them to the relief sought, the true basis for opposition is
that the application ought never to have been brought because
the
applicants were advised that the respondents are not in possession of
the records sought.
[13]
Section
50 of PAIA provides that,
(1)
A
requester must be given access to any record of a private body if –
(a)
That
record is required for the exercise or protection of any rights;
(b)
That
person complies with the procedural requirements in this Act relating
to a request for access to that record; and
(c)
Access
to that records is not refused in terms of any ground for refusal
contemplated in Chapter 4 of this Part.
[14]
The
section must be read with the definition of ‘requester’,
provided for in s 1, which , in relation to a private body,
means
(i)
Any
person, including, but not limited to, a public body or an official
thereof, making a request for access to a record of that
private
body;
(ii)
A
person acting on behalf of the person contemplated in subparagraph
(i);
[15]
A
‘requester’ is accordingly not required to establish any
qualification in order to avail him / herself of the provisions
of
PAIA. The only qualification is that the record is required for the
exercise of protection of a right.
[16]
In
the founding affidavit the allegation is made that the applicants are
‘requesters’ as envisaged by PAIA and that
they require
access to the specified documents in order to protect intellectual
property rights which vest in the applicants. The
case is made out
that the applicants have reason to believe that the respondents have
unlawfully copied the designs of Butt Cat
ski boats. This allegation
is met with a denial and the averment that the respondents are aware
of the manufacture of Butt Cat
ski boats but that they have no
knowledge in whom the intellectual property rights vests.
[17]
Elsewhere
in the founding affidavit, in the context of describing the nature of
the relationship between the applicants, the applicants
state that
the second applicant provides expert boat fitment. The applicants
entered into an agreement whereby the second applicant
would be the
sole distributor of Butt Cat boats. The hulls are manufactured by the
first applicant and the fitment of the upper
structures and
electronics is undertaken by the second applicant. The allegation is
made that the second applicant seeks to protect
its rights against
the respondents’ alleged unlawful conduct in copying design
features. It is alleged that the second applicant’s
rights are
co-extensive with the first respondent’s rights.
[18]
Although
these allegations are denied, the denial refers back to the earlier
denial of
locus
standi
which is predicated on a plea of no knowledge.
[19]
There
can be no doubt that the applicants meet the requirements set by s 50
of PAIA. The denial of “
locus
standi
”
does not assist the respondents. The threshold requirements provided
by s 50 require that the applicants establish that
they are parties
who have met the formal requirements for access to a record
and
that
they require the specified documents for the purposes of exercising
or protecting rights which they specify. The respondents
are unable
to challenge the allegation of fact – namely that the
applicants are vested with rights to intellectual property
which they
seek to protect. The further allegations – set out in
considerable detail in the founding affidavit – set
out the
basis upon which the applicants contend that their rights have been
or are being infringed. When these are read as a whole
they establish
that the applicants fall within the ambit of s 50 of PAIA.
[20]
It
is apposite to note that the respondents do not assert that the
applicants are not entitled to access to the records sought on
the
basis that they do not require the records for the exercise or
protection of any right. The defence, as already stated, is
that they
do not possess the records sought.
[21]
Before
dealing with this aspect and its impact upon the question of costs it
should be emphasised that the respondents at no stage
sought to rely
on the provisions of Chapter 4. Chapter 4 makes provision for several
grounds for refusal of access to records on
the basis,
inter
alia
,
of the protection of private information of a third party or the
protection of commercial information as provided by s 68.
[22]
Section
55 of PAIA, upon which the respondents rely, provides that:
(1)
If
–
(a)
all
reasonable steps have been taken to find a record requested; and
(b)
there
are reasonable grounds for believing that the record –
(i)
is
in the private body’s possession but cannot be found; or
(ii)
does
not exist,
the head of a private body
must, by way of affidavit or affirmation, notify the requester that
it is not possible to give access
to that record.
(2)
The
affidavit or affirmation referred to in subsection (1) must give a
full account of all steps taken to find the record in question
or to
determine whether the record exists, as the case may be, including
all communications with every person who conducted the
search on
behalf of the head.
(3)
For
the purposes of this Act, the notice in terms of subsection (1) is to
be regarded as a decision to refuse a request for access
to the
record concerned.
(4)
If,
after notice is given in terms of subsection (1), the record in
question is found, the requester concerned must be given access
to
the record unless access is refused on a ground for refusal
contemplated in Chapter 4 of this Part.
[23]
The
section places upon a private body which seeks to rely upon the fact
that it is unable to locate a requested record or does
not have in
its possession a requested record, the obligation to make a full
disclosure on oath or under affirmation. This obligation
arises
immediately it is established by the private body that it cannot give
effect to the request for the reasons set out in s
55. The obligation
to make the disclosure under oath or affirmation gives effect to the
underlying purpose of PAIA and the Constitutional
obligation upon
which PAIA rests. In terms of the Constitution the right of access to
information is a fundamental right to which
all persons – both
public and private – must give effect. The right is regulated
by legislation. That legislation –
in the form of PAIA –
determines the ambit of the right and makes provision for limitations
to the right of access to records.
The legislation also defines the
procedural obligations which rest upon a requester and the body to
whom the request is directed.
In the case of both public and private
bodies the fundamental obligation is to provide access to records
properly requested in
terms of PAIA unless there is a ground upon
which the request may be refused as provided in the legislation.
[24]
Section
55 is designed to deal with the circumstance that a record cannot be
found or does not exist. It imposes upon the party
to whom a request
has been directed obligations which must be strictly complied with.
[25]
In
this instance the respondents failed to furnish a statement under
oath that the documents sought do not exist. That defence was
only
raised at the stage that the answering affidavit was filed.
[26]
Contrary
to the assertion in the answering affidavit that the applicants knew
well in advance of bringing the application that the
requested
records do not exist, the correspondence referred to above did not
make that assertion. Indeed there is no claim made
in the
correspondence that the requested records do not exist. Annexure M to
the founding affidavit, upon which the respondents
rely, is a letter
addressed by the respondents’ attorneys to applicants’
attorneys. It contains the invitation to inspect
a “provisional
comparative diagram”. It makes no assertion, despite traversing
several issues over five pages that
the records do not exist. The
same is true of the earlier letter dated 20 December 2016.
[27]
The
first time that this assertion is made is in the answering affidavit.
[28]
The
position that the applicants found themselves in therefore is the
following: a request was made for access to certain records
in terms
of s 50 of PAIA; the request complied with all the formal
requirements set out in the Act; no decision was made in terms
of s
56 to provide or refuse access to the records within the time periods
stipulated in that section and no request was made in
terms of s 57
for an extension of time within which to make the decision. According
in terms of s 58 of PAIA the respondents are
deemed to have refused
the request for access to the records and the applicants were
entitled to proceed with the application to
court to gain access to
the records.
[29]
There
can accordingly be no doubt that the applicants were entitled to
pursue the application for the relief set out in the notice
of
motion. Upon receipt of the answering affidavit the position of the
respondents was clarified for the first time. I have already
indicated that the application falls within the ambit of the
provisions of s 50 as read with s 1 of PAIA and that, in relation
to
the merits of the application for access, the applicants were
entitled to pursue the application.
[30]
It
follows from this that the applicants are be entitled to the costs
occasioned by having to launch this application.
[31]
I
therefore make the following order:
The
respondents are ordered to pay the applicants’ costs jointly
and severally, the one paying the other to be absolved.
_________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicants
Adv.
I. Bands
Instructed
by Randell & Associates
For
the Respondents
Adv.
B. Westerdale
Instructed
by Slabbert Attorneys
c/o
Brown Braude & Vlok