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[1984] ZASCA 27
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Film Editors (Pty) Ltd v Cine Power (Pty) Ltd (487/81) [1984] ZASCA 27 (27 March 1984)
THE FILM EDITORS (PROPRIETARY) LIMITED
Appellant
(FORMERLY TREVOR HILL POST PRODUCTIONS (PROPRIETARY) LIMITED)
and
CINE POWER (PROPRIETARY) LIMITED
Respondent
WPA 487/81 EB
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter
between:
THE FILM EDITORS (PROPRIETARY) LIMITED
Appellant
(FORMERLY TREVOR HILL POST PRODUCTIONS (PROPRIETARY) LIMITED)
and
CINE POWER (PROPRIETARY) LIMITED
Respondent
Coram:
KOTZé, VILJOEN, NICHOLAS, JJ A et SMUTS et
GROSSKOPF, A JJ A
Heard
: 12 March 1984
Delivered
: 27
March 1984
JUDGMENT KOTZE, J A
:
At the commencement of the hearing of this
appeal
the /2
-2-
the late filing of the record was condoned. By consent
and by reason of the order to be made on the appeal no order
of costs is made in regard to the application for condonation.
At a trial in the Witwatersrand Local Division before THERON, J the appellant
company (previously known as Trevor Hill Post Productions
(Proprietary) Limited)
and which I shall call "the plaintiff" adduced the evidence of a number of
witnesses and closed its case.
Counsel for the respondent company, which I shall
call "the defendant", applied for absolution from the instance without closing
its case. The learned Judge granted the application with costs. From this order
the plaintiff now appeals. Accordingly, applying
the rule in
Gascoyne v Paul
and Hunter
,
1917 TPD 170
,
the /3
-3-the question now to be determined is whether there was at the close of the
plaintiff's case evidence on which a reasonable man
might find for the
plaintiff. (See also
Gafoor v Unie Versekeringsadviseurs (Edms) Bpk
,
1961(1) S A 335 (AD) at 340).
The case concerns the sale, during January 1978, by the defendant to the
plaintiff of a Moviola 35 mm editing table at a purchase
price of R16 500,00
which, admittedly, was duly paid. The plaintiff alleged, and this was common
cause, that it was a term of the
agreement of sale that the editing table would
function efficiently as an editing machine giving a high quality picture and
that
it would be suitable for the purpose for which it was required by the
plaintiff /4
-4-
plaintiff. An editing table has a dual function.
(a) It is used in the
process of editing cinematographic
film, that is, cutting and piecing
together lengths of
film in order to make a film suitable for cinema or
tele
vision projection; and in the process of synchronising the
film with
background music and other sound effects.
(b) It is used for the viewing of
the film by the clients
for whom it is produced, to enable them to determine
its
acceptability. The gist of the plaintiff's cause of
action for the
repayment of the purchase price against
return of the machine and for damages
is set out as follows
in paragraphs 8 to 11 of its particulars of claim.
"8 (a) At all times material hereto and in particular at the time when the
said editing table
was /5
-5-
was delivered to the Plaintiff the same was materially defective in the
following respects:-(i) It did not operate efficiently as
an editing machine.
(ii) It caused damage to films
during the course of operation, (iii) The film transport and
sprockets were excessively noisy. (iv) The optical lenses became covered with
film dust.
(b) The said defects were material and were due to faulty design of the said
editing table. 9. (a) By reason of the aforesaid
defects the said editing table was rendered wholly unsuitable for the
Plaintiff's purposes or for use as such.
(b) By reason of the said defects
the Plaintiff,as it was entitled to do, rescinded' the aforesaid
agreement /6
-6-
agreement and tendered to return the editing table to the Defendant and
claimed repayment of the aforesaid purchase price in the sum
of R16 500. (c) The
Defendant has refused to accept the return of the said editing table or to pay
to the Plaintiff the aforesaid
sum of R16 500 or any part thereof. 10.
Alternatively to paragraph 9 above:
-
(a) By reason of the aforesaid de
fects, at all times material
hereto
the value of the editing
table did not exceed the sum
of R1 000.
(b) In the premises the Defendant
is obliged to refund to the
Plaintiff
the sum of R15 500
being the difference between
the said value and the
afore
said price of R16 500.
11. (a) As a direct consequence of the aforesaid defects and the inability of
the Plaintiff to use
the /7
-7-
the editing table for the purpose intended, the Plaintiff has suffered
damages in the sum of" R3 583,00, being hire charges incurred
for other
equipment while the said machine was incapable of being used, (b) At the time of
the aforesaid
agreement of sale, it was within the contemplation of the parties that the
Plaintiff would suffer damages of the said type if the
said machine was
defective."
The date upon which the agreement was rescinded was 27th February 1979.
The plea raises several defences. For present purposes, however, the sole and
crucial issue to be considered turns on the denial by
the defendant of the
above
quoted /7(a)
-7(a)-quoted allegations and the finding by THERON, J that
the plaintiff "has ... not established
prima facie
, or at all, that there
was any structural defect in this machine, nor that it suffered
any /8
-8-any damages, nor that it is entitled to a reduction in the purchase
price."
The rule in
Gascoyne v Paul and Hunter
is a strict one - so strict
that it has, for instance, been remarked that an application of the type now
under consideration "can
be successful only in the clearest possible cases" -per
PITTMAN, J in
Myburgh v Kelly
,
1942 E D L 202
at 207. A court of first
instance refusing such an application should as a rule avoid "unnecessary
discussion of the evidence, lest
it seems to take a view of its quality and
effect that should only be reached at the end of the whole case" and "on appeal
it is
generally right for the Appellate Tribunal, when allowing an appeal
against an order granting absolution
at /9
-9-at the close of the plaintiff's case, to avoid, as far as possible, the
expression of views that may prematurely curb the free
exercise by the trial
Court of its judgment on the facts when the defendant's case has been closed" -
per SCHREINER, J A at p 340
D-E in
Gafoor's case
, supra.
Having read and carefully considered the evidence and the several exhibits
placed before the Court
a quo
on behalf of the plaintiff, I am of the
view that the application for absolution from the instance in the Court
a quo
should have failed. Having regard to the remarks of SCHREINER, J A quoted in
the preceding paragraph the less said about the quality
of the evidence the
better. I accordingly propose to avoid a full consideration of the vast body
of
evidence /10
-10-
evidence led at the trial which extends over nearly 500 typed pages
and to indicate by reference to an admission by the defendant
and to a few brief
portions of the evidence (without passing any comment on the cogency or weakness
thereof) why, in my view, there
is sufficient reason to conclude that a
reasonable man might find in favour of the plaintiff.- in regard to the
allegations in paragraph
8 of the particulars of claim.
A.
The admission
.
The editing table was delivered to the plaintiff
during June 1978. Prior, a director of the plaintiff, testified that on the 6th
September
1978 he addressed a letter to the defendant in which were listed the
following eleven
faults /10
-11-
faults which the table manifested:
"1. Left front brake drum has fallen out once.
2.
Left centre brake drum has
fallen out three times.
3.
Picture pull down
roller came loose and damaged a transmission
print.
4. Forward button
sticks.
5.
Picture lamp fan does not cool lamp sufficiently resulting in very
short lamp life.
6.
Various fuses repeatedly
blowing, we have replaced approximately fifteen fuses since
installation.
7.
Lens in both modules supplied
falls out.
8.
Original picture module very
very noisy, scratched picture.
9.
Replacement
picture module equally noisy, picture quality very poor in comparison with
original module.
10. Front sound module looses
tension.
11. Optical /12
-12-11. Optical sound rows badly."
The letter continued:
"We feel that a machine of this sophistication and expense should not have
these problems and if they do occur you should sort them
out."
Prior further testified that the editing table was thereafter returned to the
defendant in order to have repairs done to it as "intermittent
problems" were
experienced "from time to time". He handed in a telex dated 23rd November 1978,
i e shortly after the table had been
returned for repair, in which Hill,
plaintiff's managing director, set out a series of faults existing as at that
date. One of the
faults referred to was that the table caused the films to
be
scratched /12(a)
-12(a)-scratched and some of the
films so scratched were sent to the defendant for inspection. Prior thereafter
handed into Court
a telex dated 24th November 1978 addressed to the plaintiff by
the defendant which contained an extract from a
telex /13
13
telex sent by the defendant on that day to the American manufacturer of
the editing table (Magnasync Moviola Corpo-ration). The extract
reads:
"FURTHER THE FILM SLIDE:REPLACEMENT FOR TREVOR HILL SINCE WE HAVE REPEATED-LY
ADVISED THAT THE MATERIAL USED IN THE MANUFACTURE OF
THE 35MM FILM TRANSPORT
NOTABLY THE GATE IS OF MOST UNSUITABLE CHOICE AND RESULTS IN NOT ONLY SCRATCHING
THE FILM TO HELL AND GONE
BUT WILL ALSO CAREFULLY AND CONTI-NUOUSLY REMOVE ANY
IDENTIFYING NUMBERS ON THE EDGE OF THE FILM IN SHORT
UNSUITABLE AS WE HAVE PROVED WITH
EVERY 35MM TABLE IN SERVICE
WE CONSIDER IT A WASTE OF GOOD TIME,
EFFORT AND OUR MONEY TO INSTALL FOR A
THIRD TIME THIS MOST UNSUITABLE PART
PLEASE ADVISE WHAT SUGGESTIONS AND
COMMENTS YOU HAVE AND WHAT INTENTIONS
MOVIOLA HAVE OF RECTIFYING THE FAULT
WE /14
-14-
WE ARE EXPERIENCING UNBELIEVABLE PROBLEMS WITH TREVOR HILL PRODUCTIONS AND
FRANKLY SINCE ALL THE PROBLEMS ARE THOSE OF MANUFACTURE
WOULD ACTUALLY PREFER TO
HAVE NOTHING FURTHER TO DO WITH EITHER THEIR COMPANY OR THEIR EDITING TABLE"
A reasonable person clearly might construe the above extract, consisting as
it does of the defendant's own words, prima
facie
at least as admissions
of
(a) inefficient operation;
(b) scratching of
film;
(c) removal of identifying numbers on the film
edges;
(d) unsuitability for use as an editing machine;
(e) vices due to faulty
manufacture.
The /15
-15-The learned Judge made
no reference to the above telex in his judgment, may well have overlooked its
significance and, as a result,
might wrongly and prematurely have come to the
following finding upon which his judgment appears to be based: "the cause of the
scratching
as the plaintiff alleged wasn't due to a structural fault". In
passing it may be remarked that the allegations in paragraph 8 (b)
of the
particulars of claim was surplusage and not necessary to the plaintiff's cause
of action.
B. The
viva vove
evidence:
Prior, Hill and Dicks were three of the witnesses who testified at the trial
in regard to the materiality
of /15(a)
-15(a)-of some of the above admitted faults.
Prior said that intermittent problems were experienced with the table from
time to time. He explained that
the /16
-16-the removal of identifying numbers on the film edges did occur
and that it constitutes a serious defect so far as the matching
of negatives
with the working print is concerned. If the identifying numbers are removed the
matching exercise becomes very difficult
and "incredibly time-consuming and
highly expensive". In regard to the scratching of film Prior testified that it
constitutes a critical
defect since such films are unacceptable to the
television authorities and film distribution companies.
Dicks was employed by the plaintiff for a period of two years until May 1979.
He is the man who mainly worked with the editing table
in question. His evidence
was that the scratching was intermittent and often as infrequent as
once /17
-17-once in every ten prints. It however continued "until he left
the company" and he stated that despite its intermittent manifestation
the
effect of the defect was such that the table could not be used for what is
almost its primary function "which was to show a good
quality picture to
clients, because we could not run the final films because they would be
unacceptable if they had a scratch on
them". His view was that the design of the
table was faulty "because we weren't having the same problem on any make of
table that
we used".
Hill, already referred to, also gave evidence in regard to the scratching
which, he said, he experienced personally and found to be
"severe". He had about
five or six prints damaged on the table. The problem was a
"particularly /18
-18-"particularly frustrating" one and if he was told of it, he would never
have contemplated buying the table.
The are other parts of the evidence especially that of one Frahm, which
detract from the evidence of the abovementioned witnesses
but there is nothing
on the record as it stands to effectively contradict it or to negative the
prima facie
effect of the admissions contained in the telex of the 24th
November. The above
and other witnesses gave further evidence in substantiation of the
plaintiff's case but I have, I consider, referred to sufficient material
to demonstrate that as at the end of the plaintiff's case
evidence did exist upon which a reasonable man might find for
the plaintiff. It follows that the appeal should succeed. The application
that the fees of two counsel be allowed is not acceded to.
The /19
-19-The appeal is allowed with costs;
the order granted absolution from the instance is set aside and the case is
remitted to the
trial Court for the continuance of the hearing as from the close
of the plaintiff's case. The defendant must pay any wasted costs
incurred by the
plaintiff in the Witwatersrand Local Division in consequence of the appli-cation
for absolution from the instance.
JUDGE OF APPEAL
VILJOEN J A )
NICHOLAS J A )
concur
SMUTS A J A ) GROSSKOPF, A J A )