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[1997] ZAWCHC 2
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Unilever PLC and Another v Polagric (Pty) Ltd (2824/96, 9647/96) [1997] ZAWCHC 2; 2001 (2) SA 329 (C) (15 December 1997)
IN THE SUPREME COURT
OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
REPORTABLE
CASE NO'S.:2824/96
9647/96
In the matter
between:
UNILEVER PLC
....................................................................................................................
First
Applicant
UNILEVER BROTHERS
(PTY) LTD
...........................................................................
Second
Respondent
and
POLAGRIC (PTY) LTD
..............................................................................................................
Respondent
JUDGMENT DELIVERED
THIS 15th DAY OF DECEMBER, 1997.
THRING, J:
Rule 35(12) reads:
"Any party to
any proceeding may at any time before the hearing thereof deliver a
notice as near as may be in accordance with
Form 15 in the First
Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording
to produce such
document or tape recording for his inspection and to permit horn to
make a copy or transcription thereof. Any party
failing to comply
with such notice shall not, save with the leave of the court, use
such document or tape recording in such proceeding
provided that any
other party may use such document or tape recording."
This is an
application to compel compliance with this subrule .
In
March, 1996 Unilever PLC and Lever Brothers (Pty.) Ltd., (to which I
shall refer as the first and second applicants, respectively)
launched proceedings in this Court by way of motion against Polagric
(Pty.) Ltd. (to which I shall refer as the respondent). I
shall refer
to these proceedings as "the main application". It is still
pending. In this application the applicants seek
orders interdicting
and restraining the respondent from infringing certain of the first
applicant's registered trade marks and
from passing-off its goods as
and for those of the first applicant, and further ancillary relief.
The matter is opposed by the
respondent. The main application is
supported by a founding affidavit deposed to by Mr. T.D. Allchurch,
who is currently the second
applicant’s marketing director. In
this affidavit he deals,
inter
alia
,
with six trade marks of which the first applicant is the registered
proprietor in the Republic of South Africa. These trade marks
relate
to the words "Handy Andy", to certain labels and devices,
and to a container. Allchurch goes on in his affidavit
to set out
particulars of the periods of use of these trade marks, the goods for
which the marks have been used, the manner in
which they have been
used, and new applications thereof. In order to demonstrate the
extent of the use which has been made of the
marks and of the
reputation and goodwill attaching to them, he has set out the
applicants' turnover in the Republic of South Africa,
rounded off to
the nearest R1000, in relation to Handy Andy household cleaner for
the years 1990 to 1994, both inclusive. He has
also set out
particulars of the manner in which and extent to which these products
have been advertised on television and in the
print media. All these
allegations are prefaced by paragraph 5 of Allchurch's affidavit,
which reads:
"
EVIDENCE
FROM RECORDS:
In this affidavit I
shall refer to historical dates which have been extracted from the
archives and records kept by Unilever and
Lever Brothers. Lever
Brothers, in particular, has kept a comprehensive record of the
development of its products, including HANDY
ANDY household cleaners.
I shall also refer to certain turnover and advertising and
promotional expenditure. The exact figures
have been extracted from
the records kept by Unilever and Lever Brothers which relate to sales
of HANDY ANDY products and marketing,
advertising and promotional
expenditure in relation thereto. The records and archival material
are part of a properly kept and
correct continuous record of the
affairs of Unilever and Lever Brothers which have been under the
control of my predecessors and
which are now under my own control and
to which I have access. Save as aforesaid, and unless special
reference is made thereto,
the records and archival material of
Unilever and Lever Brothers are not relevant to this application. As
will be seen further,
the deponents who deliver supporting affidavits
are personally aware of the general level of turnover and expenditure
during the
relevant period."
The respondent has
not yet delivered its opposing affidavits in the main application. It
has served a notice on the applicants which,
in its material parts,
reads as follows:
"
RESPONDENT'S
NOTICE IN TERMS OF RULE 35(12)
BE PLEASED TO TAKE
NOTICE THAT the abovenamed Respondent requires you to produce for its
inspection the following documents and
tape recording referred to in
the founding affidavit of Thomas David Allchurch filed in these
proceedings:
1.
.............
2. The 'archives and
records kept by Unilever and Lever Brothers1 referred to in paragraph
5 of the said affidavit which are under
the deponent's control
evidencing the following:
2.1. The date when:
(a) Applicants' use
of registered trade mark number 8 6/8184 (referred to in paragraph
7.3 of the affidavit) in the Republic of
South Africa ceased; and
(b)
If such use did not cease prior to 1 January 1995, the sales figures
and marketing, advertising and promotional expenditure
in respect of
products bearing the said trade mark for the period 1 January 1995
to date.
2.2. The date when:
(a)Applicants' use
of registered trade mark number 85/8423 (referred to in paragraph
7.4 of the affidavit) in the Republic of
South Africa ceased; and
(b)
If such use did not cease prior to 1 January 1995 the sales figures
and marketing, advertising and promotional expenditure
in respect of
products bearing the said trade mark for the period 1 January 1995
to date.
2.3. The date when:
_
(a)
Applicants' use of registered trade mark numbers 91/8407 and 91/8408
(referred to in paragraph
7.6
of the affidavit) in the Republic of South Africa ceased ('the
container'); and
(b)
If such use did not cease prior to 1 January 1995 the sales figures
and marketing, advertising and promotional expenditure
in respect of
products bearing the said trade mark for the period 1 January 1995
to date.
2.4. The date when
each so-called 1 old label1 ceased to be used by Applicants in the
Republic of South Africa (paragraph 8.2.1
of the affidavit).
2.5. The date when
each so-called 'new1 Handy Andy label (referred to in paragraph
8.2.2 of the affidavit) was introduced in South
Africa.
2.6. The sales of
products bearing the said 'new1 labels over the period January 1995
to date.
2.7. Advertising
expenditure of products bearing the said 'new' labels over the
period 1 January 1995 to 1 April 1995.
3. ............
4.
The archives and records relied upon for the extraction of the sales
figures referred to in paragraphs 11.1 and 11.2 of the
affidavit.
5.
The archives and records relied upon for the advertising and
promotion expenditure referred to in paragraph 12.1
6.
The originals of annexures ,TDA4(1)1 to *TDA4(17) to the affidavit.
7.
................
TAKE NOTICE FURTHER
THAT the abovenamed Respondent requires the said documents for
purposes of answering the allegations contained
in Applicants'
founding affidavits and that, in the event of Applicants failing to
make any such documents available in terms
of Rule 35(12),
Respondent will make application to the above Honourable Court for a
direction in terms of Rule 35(13) . "
(The documents
referred to in paragraphs 1 and 3 and the video tape referred to in
paragraph 7 of the notice have all been made
available to the
respondent, and no relief is sought in respect thereof in the
present application.)
In response to this
notice the applicants delivered a reply which has been amplified in
certain respects in a subsequent opposing
affidavit deposed to,
again, by Allchurch. The applicants refuse to produce the documents
in issue or to make them available
to the respondent on various
grounds, which I shall presently summarise. Hence this application.
As regards the
documents sought by the respondent in paragraphs 2.1(a), 2.2(a) and
2.3(a) of its notice, the applicants say that
-
(a)
They
make
no reference to any documents in the paragraphs of Allchurch's
founding affidavit in the main application (viz. paragraphs
7.3, 7.4
and 7.6 thereof) in connection with which these documents are now
sought, and the respondent consequently has no entitlement
to the
production or inspection of any documents;
(b) In each of the
aforesaid paragraphs in Allchurch's founding affidavit reference is
made by him to an accompanying affidavit
deposed to by a Mr. E.W.
Schulze, who is allegedly the media market research controller for
the second applicant and who alledgedly
has personal knowledge of
the marketing of the applicants1 Handy Andy product at the relevant
times.
As regards the
documents sought by the respondent in paragraphs 2.1(b), 2.2(b) and
2.3(b) of its notice, the applicants say in
their reply that the
information sought does not relate to documents but is by way of a
request for particularity to which the
respondent is not entitled.
In his opposing affidavit Allchurch does not deal separately with
these paragraphs of the respondent's
notice, but seems to treat them
on the same basis as paragraphs 2.1(a),
2.2(a) and 2.3(a)
thereof.
As regards the
documents sought by the respondent in paragraphs 2.4 and 2.5 of its
notice, the applicants say that -
(a) The information
sought is in the nature of a request for particularity to which the
respondent is not entitled;
(b) No documents
are referred to in the paragraphs of Allchurch's founding affidavit
in the main application (viz. paragraphs
8.2.1 and 8.2.2 thereof) in
connection with which these documents are now sought;
(c) The statements
made by Allchurch in these paragraphs are supported by the deponents
to two other accompanying affidavits in
the main application, one by
Mr. I.V. Everitt-Penhale, who has allegedly held various positions
with the second applicant at
various times in the past, and the
other by Ms. A.H. Tatham, who is allegedly the marketing manager,
liquids, of the second applicant.
As regards the
documents sought by the respondent in paragraphs 2.6 and 2.7 of its
notice, the applicants say that -
(a) The information
sought . is in the nature of a request for particularity to which
the respondent is not entitled;
(b) No documents
are referred to by the applicants;
(c) The applicants1
case in the main applications is not based on sales or advertising
figures subsequent to the 1st January,
1995, and no mention has
accordingly been made in the applicants' founding papers of archives
or records in support of facts
after this date.
As regards the
documents sought by the respondent in paragraphs 4 and 5 of its
notice, the applicants say that -
(a) They make no
direct reference to such documents in the paragraphs of AllchurchTs
founding affidavits in the main application
(viz. paragraphs 11.1,
11.2 and 12.1 thereof) in connection with which these documents are
now sought, and the respondent consequently
has no entitlement to
the production or inspection of any documents;
(b) Without
prejudice to their rights "herein" the applicants attach
to their reply a "computer generated summary
of sales figures
and promotional expenditure being in its nature a distillation of
the information in question";
(c) Allchurch, in
his Opposing affidavit in this application says that the second
applicant's records relating to the figures
in question are
computerised; that the computer system contains much confidential
information relating, for example, to the second
applicant's profit
margins on its various products, and that the applicants wish to
maintain the confidentiality of this highly
sensitive information;
(d) The second
applicant's auditors have prepared various tables after analysing
the various figures, which tables are annexed
to Allchurch's
affidavit.
As regards the
documents sought by the respondent in paragraph 6 of its notice, the
applicants say that some of the original documents
sought form part
of their founding affidavit in the main application; where this is
not the case, such documents are no longer
or never were in their
posession.
In addition to
these specific grounds for their attitude and response to the
respondents notice the applicants have raised two
other, more
general grounds. The first of these is that the respondent is
adopting delaying tactics in seeking access to these
documents. The
second is that the applicant aver that the respondent is on
a"fishing expedition". In this regard Allchurch
says in
his
opposing affidavit:
"The
Respondent has failed to give any reason as to why it believes that
the documents are relevant or why it requires the
documents at all."
I
assume the gravamen of these allegations to be an attack on the
respondent’s true motives for bringing this application,
and
therefore on its
bona
fides
in
doing so. These general grounds may be dealt with summarily before I
proceed to deal with the others.
As
far as delay is concerned, some ten months elapsed, from the 3rd
May, 1995 to the 8th March, 1996, between the respondent's
written
response to the applicants1 letter of demand dated the 4th April,
1995 to the launching of the main application. The
respondent then
timeously delivered its notice in terms of Rule 35(12) on the 15th
March 1996. More than three months then passed
before the
applicants1 replied thereto on the 5th July, 1996. The present
application was thereafter launched fairly promptly
by the
respondent on the 31st July, 1996. Certain correspondence then
passed between the parties1 attorneys and the matter was
postponed
by agreement
sine
die
.
Further correspondence was exchanged thereafter, culminating in a
telefaxed letter dated the 17th September,.
from the
applicants’ attorneys to the respondents' attorneys in which
the former said:
"We are
obtaining our clients' instructions and
will revert to you
in due course."
However, nothing
further was heard from them until the 10th February, 1997, when
Allchurch's opposing affidavit was delivered.
It
is clear from this history that it cannot be said that the
respondent has been responsible for any substantial delay in this
matter to date. Rather is the position the converse. Mr.
Ginsberg
,
who, with Mr.
Cullabine
,
appears for the applicants, did not press this point in argument,
and I think that he was right not to do so. There is no merit
in it.
As
to the applicants' complaint that the respondent is on a "fishing
expedition", this is to some extent neutralised
by the manner
in which the respondent, in its notice in terms of Rule 35(12), has
confined the scope of the documentation to
which it seeks access,
viz. by demanding production only of documents "evidencing"
certain things. But in any event
the respondent is, in my view, in
circumstances such as these, acting within its rights to engage in a
certain amount of "fishing”,
if that is the correct word
to use, as long as it relates to what is, or will or may become, a
bona
fide
basis
for resisting the main application. In his founding affidavit in the
present application the respondents' attorney, Mr.Zieff
says:
"After
the launch of the main application I was consulted by the Respondent
and instructed,
inter
alia,
to
oppose the application on its behalf. At that time senior and junior
counsel were briefed and consulted for purposes of considering
the
Applicants' papers and attending to the preparation of opposing
affidavits. After careful consideration, we concluded that
in order
to conduct the Respondent's defence properly and, more particularly,
to prepare its opposing affidavits, it was necessary
to inspect the
Applicants' archives and records referred to in Allchurch's
affidavit, and in particular such of those documents
as related to
the allegations in paragraphs 7,8,11 and 12 of Allchurch's affidavit
and the issues arising therefrom."
Allchurch
deals with this application in his opposing affidavit by saying,
inter
alia
:
"I dispute
that it was necessary for the Respondent to inspect the Applicants'
archives and records in order to conduct its
defence. In this regard
I submit that the Respondent should know what its defence will be
without having to
In
my view. Allchurch is wrong. It does not necessarily follow that the
respondent should know what its defence will be without
having to
inspect the applicants' documents. The respondent is not required to
depose to or deliver its opposing affidavits before
it has been
afforded an opportunity of inspecting and copying the documents
referred to in Rule 35(12). This is clear from the
following
dictum
of
Marais,
J
,
as he then was, in
Protea
Assurance
Company Ltd v Waverlev Agencies CC and Others
,
1994(3) SA 247(C) at 249 B-D:
"Applicant's
desire that second respondent should first have to file his
affidavit in response to the allegations made by
Roberts as to what
second respondent said to him during the telephone conversations
which were recorded on the tape before being
allowed to listen to
the tape is understandable as a forensic strategy, but to gratify it
would be to defeat the object of Rule
35(12). That rule plainly
entitles a litigant to see the whole of a document or tape recording
and not just the portion of it
upon which his adversary in the
litigation has chosen to rely. That entitlement, unlike the
entitlement to general discovery
for which Rule 35(1) provides, does
not arise only after the close of pleadings in a trial action, or
after both answering and
replying affidavits have been filed in
motion proceedings: it arises as soon as reference is made in the
pleading or affidavit
to a document or tape recording. It is
inherent in that that a litigant cannot ordinarily be told to draft
and file his own pleadings
or affidavits before he will be given an
opportunity to inspect and copy, or transcribe, a document or tape
recording referred
to in his adversary's pleading or affidavits."
See,
also,
Erasmus
v Slomowitz(2)
,
1932 TPD 242
at 244. It is clear from these decisions that,
otherwise than is the case with discovery under Rule 35(1) and (2)
read with Rule
35(13), a defendant or respondent does not have to
wait until the pleadings have been closed or his opposing affidavits
have
been delivered before exercising his right under Rule 35(12):
he may do so at any time before the hearing of the matter. It
follows
that he may do so before disclosing what his defence is, or
even before he knows what his defence, if any, is going to be. He is
entitled to have the documents produced "for the specific
purpose of considering his position" (
Erasmus
v Slomowitz
(
2
)
,
supra
,
at 244: see, also,
Gehle
v McLouahlin
,
1986(4) SA 543(W) 54 6 D-E) . I conclude that the applicants'
refusal to produce the documents sought cannot be justified on
this
ground.
Before
I turn to the more specific grounds of objection relied on by the
applicants it may, I think, be useful to advert briefly
to the scope
of Rule 35(12), and to the question of which party bears the
onus
in
an application under this sub-rule.
Rule
35(12) is cast in very wide terms. It does not contain the
requirement mentioned in Rule 35(1) or Rule 35(11) that the document
concerned must be one "relating to any matter in question"
nor the requirement mentioned in Rule 35(3) that the document
must
be "relevant to any matter in question": see
Gorfinkel
v Gross, Hendler &
Frank
,
1987(3) SA 766(C) at 771 D. In
Magnum
Aviation
Operations
v Chairman, National Transport Commision and
Another
,
1984(2) SA 398(W) the Witwatersrand Local Division may have gone as
far as to hold (
obiter
)
that relevance is not a requirement for documents of which
production is sought under Rule 35(12). In
Universal
Citv Studios v Movie
Time
,
1983(4) SA 736 (D) it was held by the Durban and Coast Local
Division at 748 A-C that, where a party in an application such
as
this files an opposing affidavit in which he relies on privilege or
irrelevance as a ground for not producing a document the
onus
lies
on his opponent to satisfy the Court on a balance of probability
that the document is indeed relevant or not privileged as
the case
may be. Both these aspects were dealt with in this Court by
Friedman,
J.
,
as he then was, in
Gorfinkel
v Gross,
Hendler
& Frank
,
supra
.
At 773 H to 774 I the learned
Judge said:
"There are
undoubtedly differences between the wording of Rule 35(12) and the
other subrules relating to discovery, for example
subrules (1),
(3)
and (11) of Rule 35. The latter subrules specifically refer to
relevance whereas subrule (12) contains no such limitation
and is
prima
facie
cast
in terms wider than subrules (1), (3) and (11).
It is nevertheless
to my mind necessarily implicit in Rule 35(12) that there should be
some limitation on the wide language used.
One such limitation is
that a party cannot be compelled under Rule 35(12) to produce a
document which is privileged.
With
regard to relevance there must also, in my view, be some limitation
read into Rule 35(12). To construe the Rule as having
no limitation
with regard to relevance could lead to absurdity. It would be absurd
to suggest that the Rule should be so construed
that reference to a
document would compel its production despite the fact that the
document has no relevance to any of the issues
in the case. It is
not difficult to conceive of examples of documents which are totally
irrelevant. Booysen J in the
Universal
Citv
Studios
case
gave one such example. What is more difficult to decide is where the
line should be drawn. A document which has no relevance
whatsoever
to the issues between the parties would obviously, by necessary
implication, be excluded from the operation of the
Rule. But would
the fact that a document is not subject to discovery under Rules
35(1), 35(3) or 35(11) render it immune from
production in terms of
Rule 35(12)?
In
my view the parameters governing discovery under Rules 35(1), 35(3)
and 35(11) are not the same as those applicable to the
question
whether a document is irrelevant for the purposes of compliance with
Rule 35(12). A party served with a notice in terms
of Rule 35(1) is
obliged to make discovery of documents which may directly or
indirectly enable the party requiring discovery
either to advance
his own case or to damage that of his opponent or which may fairly
lead him to a train of enquiry which may
have either of these
consequences. Documents which tend merely to advance the case of the
party making discovery need not be
disclosed. As Rule 35(12) can be
applied at any time, ie before the close of pleadings or before
affidavits in a motion have
been finalised, it is not difficult to
conceive of instances where the test for determining relevance for
the purposes of Rule
35(1) cannot be applied to documents which a
party is called upon to produce under Rule 35(12), as for example
where the issues
have not yet become crystallised. Having regard to
the wide terms in which Rule 35(12) is framed, the manifest
difference in
wording between this subrule and the other subrules,
ie subrules (1), (3) and (11) and the fact that a notice under Rule
35(12)
may be served at any time, ie not necessarily only after the
close of pleadings or the filing of affidavits by both sides, the
Rule should, to my mind, be interpreted as follows:
prima
facie
there
is an obligation on a party who refers to a document in a pleading
or affidavit to produce it for inspection if called upon
to do so in
terms of Rule 35(12). That obligation is, however, subject to
certain limitations, for example, if the document is
not in his
possession and he cannot produce it, the Court will not compel him
to do so. (See the
Moulded
Components
case
supra
at
461 D-E.) Similarly, a privileged document will not be subject to
production. A document which is irrelevant will also not
be subject
to production. As it would not necessarily be within the knowledge
of the person serving the notice whether the document
is one which
falls within the limitations which I have mentioned, the
onus
would
be on the recipient of the notice to set up facts relieving him of
the obligation to produce the document. Cf
Quilter
v
Heatlv
(1883)
23 ChD 42
at 51."
Insofar
as there are differences between the decisions in the
Maanum
Aviation
and
Universal
Citv Studios,
cases
supra
,
on the one hand, and the decision of this Court in the
Gorfinkel
case,
supra
,
on the other, I prefer the latter, for the reasons given by
Friedman,
J.
in
that case. Accordingly, I approach this matter on that basis.
In
my view there can be no doubt that, in paragraph 5 of his founding
affidavit in the main application, Allchurch has referred
to certain
documents.
He
has described them as:
(a) "archives
and records kept by Unilever and Lever Brothers";
(b) "a
comprehensive record of the development of its products, including
Handy Andy household cleaners";
(c) "records
kept by Unilever and Lever Brothers which relate to sales of Handy
Andy products and marketing advertising and
promotional expenditure
in relation thereto";
(d) "records
and archival material" which are "part of a properly kept
and continuous record of the affairs of
Unilever and Lever Brothers
"
This
being so, there is, in terms of the
Gorfinkel
case,
supra,
at
774 G-I,
prima
facie
an
obligation on the applicants to produce them for inspection if
called upon to do so under Rule 35(12), as they have been. The
onus
is
on them to set up facts relieving them of this obligation, such as
privilege, irrelevance or that the documents are not in
their
posession, and that they are therefore unable to produce them. The
fact that the documents of which production is sought
are not
separately identified in the respondent’s notice in terms of
Rule 35(12) is immaterial for the applicants, having
refered to
them, know what they are and can identify them for themselves: see
Cullinan
Holdings
Ltd. v Mamelodi Stadsraad
,
1992(1) SA 645 (T) at 650 D.
To
my mind it does not avail the applicants to say, as Allchurch says
in his opposing affidavit, that they make no reference to
any
documents in those paragraphs of his affidavit in the main
application in connection with which the production of documents
is
sought by the respondent. The same applies to Allchurch's disavowal
of reliance on the contents of documents in making the
applicants'
case in the main application, and the applicants' reliance in making
their case, rather on the affidavits of persons
who have personal
knowledge of the relevant facts. The documents to which Allchurch
makes referance in paragraph 5 of his founding
affidavit in the main
application seem very clearly to me, at least
prima
facie
,
from what he himself says in that paragraph, to have evidentiary
value. They constitute, he says, part of a "properly kept
and
correct continuous record of the affairs of" the applicants.
"Historical dates" have been extracted from them,
as have
"exact figures .... which relate to sales of Handy Andy
products and marketing, advertising and promotional expenditure
in
relation thereto". The documents may well, and probably do,
contain a great deal of information which supports the applicants'
case in the main application. However, the possibility can certainly
not be excluded, in my view, that they may contain material,
or an
absence of material, which may be adverse to that case. For that
reason, if for no other, the documents would have had
to be
discovered by the applicants in due course in terms of Rule 35(1)
and (2) if this had been an action, or if discovery were
to be
ordered by the Court in these proceedings in terms of Rule 35(13).
The fact, if such it be, that other evidence may exist
on which the
applicants may prefer to rely in advancing their case seems to me to
be quite irrelevant to the present enquiry.
In
Erasmus
v Slomowitz(2)
,
supra
,
Murray,
J
.
, as he then was, said at 244:
"An essential
is, of course, a reference by the opponent, in his pleading or
affidavit, to the documents whereof such production
is required, but
the terms of the rule do not require a detailed or descriptive
reference to such documents, nor is any di-stinction
made between
documents upon which the action or other proceeding is actually
founded and documents possessing merely evidentiary
value."
I am unable to
agree that any of the material sought by the respondent in paragraph
2 of its notice constitutes merely a "request
for particularity
to which the respondent is not entitled", as the applicants
aver in their reply to the notice. All the
material sought in this
paragraph of the notice is expressly specified in the notice to
consist of the "archives and records
kept by Unilever and Lever
Brothers... evidencing" certain matters, being dates, sales and
advertising expenditure. Not
a single question is asked of the
applicants anywhere in the notice: there is, in my view, no request
for particularity to be
found in the notice. All that it contains is
a demand that the applicants produce certain documents and a tape
recording for
inspection by the respondent.
As
regards the applicants' resistance to producing the documents
referred to in paragraphs 4 and 5 of the respondent's notice
on the
ground that they contain information of a confidential nature, this,
of course, does not
per
se
in
our law confer on them any privilege against disclosure. I shall
return to this aspect later. The applicants' tender, in
lieu
of
production of these documents, of tables compiled by their auditors
of certain information extracted therefrom is, in my view,
clearly
not compliance with Rule 35(12). There is no reason why the
respondent should have to be content with these tables.
The
applicants' reply to the respondent's demand that they produce the
original documents referred to in paragraph 6 of the notice,
viz.
that some of these are attached to their founding affidavit and
others are no longer or never were in their possession seems
to me
to be adequate: those documents that are attached to the affidavits,
are of course available for inspection by the respondent
at any
time. As to the others, the Court will not compel production of
documents which a party does not have in his possession
or under his
control: see the
Gorfinkel
case,
supra,
at
774 H.
As
regards the question of the relevance of the documents sought, this
is not mentioned at all in the applicants1 reply to the
respondent's
notice. It is raised cursorily by Allchurch in two passages in his
opposing affidavit. The first of these I have
already quoted above,
where, speaking generally, he points out that the respondent has
failed to give any reason why it believes
that the documents are
relevant. If I am correct in my view of the law, Allchurch has
misconceived the incidence of the
onus
:
I find, on the clear authority of
Gorfinkel
's
case,
supra
,
that it is for the applicants to establish the absence of relevance,
and not
vice
versa
.
The second passage occurs in the context of the document sought by
the respondent in paragraph 6 of its notice, where he says:
"I deny that
the original annexures are relevant.
•
I
challenge the Respondent to state in reply what relevance the
original annexures have for the preparations of its defence in
these
proceedings."
As
I do not propose to grant the respondent relief in respect of this
paragraph of the notice, I need say no more about this passage.
It
is clear, in my view, that the applicants have failed to discharge
the
onus
which
rests on them of establishing that the documents sought, other than
those sought in paragraph 6 of the notice, are irrelevant.
Indeed,
from the mere fact that Allchurch has seen fit to refer to these
documents in his founding affidavit it can be inferred,
in the
absence of any clear disclaimer, that they are relevant.
I
digress momentarily to point out in this regard that the applicants
do not seek to rely on the principle set out in
Freeman
v Freeman
,
1921 WLD 1
at 3-4, viz. that a party need not discover a document if
it does not support or tend to support his opponent's case, and, at
the same time also contains nothing which impeaches his own case:
see, also,
Lenz
Township Company (Ptv) Ltd. v Munnik and
Others
,
1959(4) SA 567(T) at 569 B-C.
To
sum up, then: I find that the applicants have referred to certain
documents in their founding affidavit in the main application;
prima
facie
they
are consequently obliged, under Rule 35 (12), to produce them for
the respondents inspection; the
onus
is
on the applicants to justify their refusal to do so. They have
failed to raise any valid objection based on privilege. They
have
failed, with the possible exception of the documents referred to in
paragraph 6 of the notice, to establish that any of
the documents
are irrelevant, or that they are unable to produce them.
I conclude that,
save for the documents of which production is sought by the
respondent in paragraph 6 of its notice, none of
the grounds
advanced by the applicants for resisting the production thereof are
valid, and the respondent is consequently entitled
to succeed in
this application.
To
meet the applicants' objection relating to confidentiality, Mr.
van
Schalkwyk
who,
with Mr.
Dickerson
,
appears for the respondent, indicated during the couse of his
argument that the respondent would be content, as regards the
documents sought in paragraphs 4 and 5 of its notice, with an order
confining the production thereof to the legal advisers and
experts
of the respondent only. Such orders were made in
Moulded
Components & Rotomouldinq
SA
(Ptv) Ltd v Coucourakis & Another
.
1979(2) SA 457 (W) and in
Crown
Cork & Seal Co. Inc. and Another v Rheem SA (Ptv.) Ltd. and
Another
,
1980(3) SA 1093 (W) . No doubt there are cases where such orders are
necessary and can be justified. However, I do not think
that this is
one of them. It is unwise, in my view, unless very special
circumstances exist, to create a situation in which the
legal advisers or
experts of a party to opposed litigation may find themselves in
possession of information which may be highly
relevant to the
litigation, but which they are precluded from communicating to their
client. What are they to do with such information?
How are they to
obtain instructions in relation thereto? How are they to advise
their client on the further conduct of the litigation,
or on whether
it should be proceeded with at all? These, it seems to me, are some
of the questions which can arise, and which,
in this case, could
potentially place the respondent's legal advisers and experts in an
invidious and even untenable position.
Serious ethical questions
could arise. The interests of the respondent could be prejudiced by
the fact that it is unable to receive
proper advice
based
on all the relevant facts. In the
Crown
Cork
case,
supra
.
Schutz,
AJ,
as
he then was, said at 1100 A - D:'
"No less in
South Africa than in England does the conflict arise between the
need to protect a man’s property from
misuse by others, in
this case the property being confidential information, and the need
to ensure that a litigant is entitled
to present his case without
unfair halters. And, although the approach of a Court will
ordinarily be that there is a full right
of inspection and copying,
I am of the view that our Courts have a discretion to impose
appropriate limits when satisfied that
there is a real danger that
if this is not done an unlawful appropriation of property will be
made possible merely because there
is litigation in progress and
because the litigants are entitled to see documents to which they
would not otherwise have lawful
access. But it is to be stressed
that care must be taken not to place undue or unnecessary limits on
a litigant's right to a
fair trial, of which the discovery
procedures often form an important part. I trust that by holding
what I have I have not opened
a new door to interlocutory litigation
or to a flood of ill- founded objections on grounds of
confidentiality. Practitioners
would do well to remember that the
normal rule is full inspection."
I
find myself in respecful agreement with these views. Moreover,
Mr.
Ginsberg
resisted
the imposition of any such limits on the production of the
documents: his attitude was an all-or-nothing one - the application
should be refused in its entirety, with no attempt to carve out a
compromise solution. In the circumstances I have decided to
exercise
my discretion against imposing such qualification on the
respondent's right to inspect and copy the documents concerned.
-
If, thereby, the confidentiality attached to some of them may be
compromised, that is an inevitable consequence of the applicants'
having referred to them in Allchurch's affidavit.
In the result, I
make the following order:
1.
The first and second applicants are ordered to produce for the
respondent's inspection and to permit the respondent to make
copies
thereof, the archives and records referred to in paragraph 5 of the
founding affidavit of Thomas David Allchurch
jurat
the
4th February, 1996 and requested in paragraphs 2, 4 and 5 of the
respondent's notice in terms of Rule 35(12) dated the 15th
March,
1996.
2. In the event of
the applicants failing to produce the said documents for such
inspection and copying within a period of 60
days from the date of
this order, the respondent is given leave to apply on these papers,
amplified as it may be advised, for
an order dismissing the
applicants' application, with costs.
3. The costs of
this application are to be borne by the first and second applicants
jointly and severally, the one paying the
other to be absolved; such
costs are to include the costs of the 21st August, 1996, and the
costs occasioned by the employment
of two counsel.
THRING, J.