Caravan Cinemas (Pty) Ltd v London Film Productions and Others

• Jurisdiction: South Africa
• Judge: Murray AJP
• Judgment Date: 14 April 1949
• Citation: 1951 (3) SA 671 (W)
• Hearing Date: 14 April 1949
• Court: Witwatersrand Local Division

B Murray AJP:

The present application under Rule of Court 54 is for an order directing the respondents to disclose to the applicant the full terms of a certain agreement between the respondents and to permit it to take copies thereof comes before this Court in the following C circumstances The applicant applied to this Court on 11th February last for an interdict pending the institution of action to enforce its alleged rights under an agreement contended by it to have been entered into between it and first respondent on or about 20th October 1948 In its petition it alleged that in such agreement - concluded between D its managing director G Rubinstein and the first respondent's authorised representative one Stevenson - the first respondent which owns or controls the right of exhibition of various cinematograph films undertook to supply applicant with the 'first releases' of some 20 or 21 such films specified in Annexure 'B' to that application I gather that E by the first release of a film is meant the right to exhibit that film at a place of entertainment for the first time in some particular area for some period that is to say before any right of exhibition thereof in such area during such period is granted to any other person carrying on business as an exhibitor of cinematograph films

F The applicant alleges that such contract was carried into effect for a short period after its conclusion, but that thereafter, in January, 1949, the first respondent breached the agreement by entering into an agreement with the second and third respondents wherein it granted them G the right to exhibit in Johannesburg a particular film 'A Man about the House' during the period for which (it is contended) the applicant enjoyed the right of exclusive exhibition by reason of its contract of 20th October, 1948. The applicant apprehends that the alleged agreement of January, 1949, between the first respondent and the second and third respondents will result in the first respondent rendering available to H the second and third respondents - and possibly to other exhibitore - other films to the first release of which applicant claims a right in terms of the contract of 20th October, 1948. Not only is the agreement of January, 1949, between the respondents alleged to be in breach of applicant's rights, but the applicant maintains that second and third respondents entered into such agreement with knowledge that the first respondent was thereby committing a breach of its contract of 20th October, 1948, with applicant. Grave and irreparable damage which

Murray AJP

could not be estimated, so it was averred, would be suffered by applicant if the second and third respondents were allowed to exhibit the films in question. The applicant realised that in view of first respondent's prior denial of the conclusion of the contract of 20th A October, 1949, the institution of a trial action was necessary to prove such contract, and in consequence asked in its application of the 11th February last for an interdict pendente lite restraining all the respondents from conduct in breach of its alleged rights as acquired from the first respondent in October, 1948.

B In reply various affidavits have been filed on behalf of the first respondent denying the conclusion of the alleged contract between Rubinstein and Stevenson on 20th October, 1948. I do not think it necessary for the purposes of the present enquiry to consider the full details of the dispute between the applicant and the first respondent. It suffices to say that first respondent in efficescontends that only C very limited rights were obtained by applicant from Stevenson as representing first respondent, such rights being referable only to the exhibition of 'A Man about the House' and possibly two other films 'The Shop at Sly Corner' and 'Panique'. The affidavit of Stevenson states inter alia that on January 12th, 1949, Sir Alexander Korda, the chairman of first respondent company

D 'finally concluded with the second respondent an agreement for the distribution of certain of our pictures, but included in the agreement a stipulation that 'A MAN ABOUT THE HOUSE' should have a seven weeks' run at the Victory, with a similar period for 'THE SHOP AT SLY CORNER' and 'PANIQUE', should the said Rubinstein require the last-named picture'.

E In essence Stevenson denies that the agreement concluded between the respondents in any way infringes such rights as applicant possesses.

The position with which I have to deal is that, while the conclusion is admitted of a written agreement in January, 1949, between first F respondent and second and third respondents, giving second and third respondents rights to exhibit various films controlled by first respondent, the knowledge of second and third respondents that such agreement was in breach of applicant's rights is strenuously denied, not only in affidavits by Harmel (a director of second and third respondent G companies) and Friedland, who as attorney for second and third respondents was present at various discussions and drew up the contract of January, 1949, but also by Stevenson as representing first respondent.

In consequence of the reference in the replying affidavits to this contract - and presumably more particularly to the quotation in H paragraph 6 of Harmel's affidavit of clauses 1, 2 and 10 of such contract (the remaining clauses being therein said by him to be irrelevant to the matters in issue in these proceedings), the applicant on 14th March, 1949, called upon the second...