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

• Jurisdiction: South Africa
• Citation: 1951 (3) SA 671 (W)

Caravan Cinemas (Pty) Ltd v London Film Productions and Others
1951 (3) SA 671 (W)[*]

1951 (3) SA p671

Citation	1951 (3) SA 671 (W)
Court	Witwatersrand Local Division
Judge	Murray AJP
Heard	April 14, 1949
Judgment	April 14, 1949

Flynote : Sleutelwoorde B

Discovery — Application under Rule of Court 54 (T) — Disclosure of the full terms of an agreement — Respondents prepared to furnish copy with certain clauses thereof sealed — Averment that such clauses irrelevant and that disclosure would be oppressive — Party C entitled to protection in the same way as that enjoyed under Rule of Court 52 — Court bound by averment of irrelevancy unless satisfied of incorrectness of statement — Sealing only form of protection — Proper course to adopt in circumstances — Practice — Application and motions — Authorisation of by company. — D Ancillary application does not need special resolution when covered by resolution for main application.

Headnote : Kopnota

In replying affidavits filed in an application for an interdict pendente lite restraining all the respondents from conduct in breach of E applicant's alleged rights as acquired from the first respondent in connection with the showing of certain first release films, the first respondent referred to an agreement concluded with the second and third respondents relating to the exhibition of certain of these films. Applicant called upon the second and third respondents to furnish it with a complete and accurate copy of the contract. In reply they stated F that they were prepared to do so, excluding therefrom certain clauses which they averred were irrelevant to the matters in issue and the disclosure of which 'would be oppressive to the second and third respondents, in that it would have the effect of making known matters vitally affecting their business to a trade competitor, without in any way furthering the decision of the matters in issue'. Applicant thereafter applied for an order. under Rule of Court 54 directing the G respondents to disclose to applicant and permit it to take copies of the whole of the document.

Held, that there was no reason to differentiate between the protection enjoyed by a party in regard to non-disclosure whether the demand for protection followed a reference to it in an affidavit of discovery under Rule 52, or whether the party had referred to it in some affidavit or in a pleading.

Held, further, as the respondents had objected to disclosure on the ground of irrelevancy, that no question of an admission of relevancy or H waiver of the protection could possibly arise.

Held, further, as the respondents had denied relevancy, that the Court was not entitled to go behind that statement unless reasonably satisfied of the incorrectness of that denial.

Held, further, though there was no specific provision for the sealing up of portions of a document, that such a course was apparently the only machinary possible to give effect to a well-founded claim for protection.

Held, also, as the application was ancillary to the main application for an interdect, that a special resolution of the applicant company to bring this application

1951 (3) SA p672

was not necessary as it was covered by the resolution authorising the main application. A

Case Information

Application under Rule of Court 54 for an order directing the respondents to disclose the full terms of an agreement. The facts appear from the reasons for judgment.

S. Kuper, K.C. (with him C. Margo), for the applicant.

O. Rathouse, K.C. (with him George Colman), for the respondents.

Judgment

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

1951 (3) SA p673

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...