Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another

• Jurisdiction: South Africa
• Judge: Botha J
• Judgment Date: 29 September 1978
• Citation: 1979 (2) SA 457 (W)
• Hearing Date: 14 September 1978
• Court: Witwatersrand Local Division

Botha J:

A In this application I consider that it would be in the interests of the parties for me to announce the conclusions to which I have come as soon as possible. I propose, accordingly, to give a judgment setting out in a general fashion the conclusions at which I have arrived and to state my reasons as far as possible for those conclusions. I know beforehand that I will not be capable of giving a judgment that will be either B comprehensive or elegant, but I proceed to do the best I can because I consider that to be in the best interests of the parties concerned. I should say at this stage that I have not yet had time to attempt a formulation in precise terms of the order that should be issued pursuant C to the conclusions at which I have arrived generally and I would therefore request counsel (even although they may find it boring) to listen to my setting forth of my reasons, so that thereafter I could request counsel to assist me in the formulation of the exact orders to be issued in view of my general conclusions.

The application with which I have to deal is one in which the applicant D seeks an order against the respondents' compelling the latter to produce for inspection a number of documents and also a number of items of machinery, and for certain further relief to which I shall refer later on. This application is being brought pending a main application between the same parties in which the applicant is applying, inter alia, for an E interdict restraining the respondents from infringing on the applicant's registered design, from passing off certain compost-making devices as being produced by the applicant, from using for their own purposes confidential information obtained from the applicant, including lists of the applicant's customers, from using confidential information obtained F from the applicant, relating to the construction of items of machinery, and for further relief, the details of which I need not set forth at this stage.

A rule nisi has already been issued in the main application; the return day of that rule has been extended from time to time, on the last occasion to yesterday when the argument in the present application commenced. An interim interdict has also been issued restraining the respondents from passing off products of their own as being those of the applicant's.

G In the main application, I may add, the applicant's replying affidavit has not yet been filed. It is alleged in the present application by the applicant that it requires the inspection referred to in the present application in order to enable it to present a proper replying affidavit in the main application.

H The relief sought in this application, broadly speaking, can be divided into three sections. First, application is made for an order compelling the production for the inspection of the applicant of a number of documents in respect of which the applicant has previously given notice to the respondents in terms of the provisions of Rule 35 (12), and also, upon a failure by the respondents to comply with that Rule, a further notice under the provisions of Rule 30 (5). The second category of the relief sought is for an order compelling the respondents to produce for the

Botha J

inspection of the applicant, and certain other people, a number of documents in respect of which no notice had been given under Rule 35 (12). The documents referred to in this section of the prayers have not been mentioned or referred to in any of the affidavits filed on behalf of the A respondents. The third and last category of the relief sought relates to the inspection of certain items of machinery in the possession of the respondents, the taking of photographs thereof, and so forth. I shall refer to the details at a later stage.

It will be convenient at the outset to deal with certain issues debated B before me which may be referred to as questions of law. The first of these is the question whether the provisions of Rules 35 (12) and 30 (5) apply to the circumstances of the present application.

It was common cause, rightly so in my view, that Rule 35 (12) applies in the case of application proceedings, and that it may be invoked before the filing of affidavits have been completed, that is, in the present case, C before a replying affidavit by the applicant has been filed. The real question is whether, when once a notice is given to produce in terms of Rule 35 (12), and there is a failure to comply with that notice, the provisions of Rule 30 (5) thereafter come into play as being applicable to that situation.

D On behalf of the respondents, it was accepted that the wording of Rule 30 (5), as it stands, is wide enough to cover a failure to comply with a notice under Rule 35 (12). The argument put forward on behalf of the respondents in this regard was that Rule 30 (5) could not be applied to a failure to comply with a notice under Rule 35 (12), because of the fact that the latter Rule in itself provides a sanction for non-compliance with E a notice given in terms of that Rule. It was submitted that, because subRule (12) provides for a sanction, there is no room for the application of a further sanction such as is envisaged in Rule 30 (5).

In support of this argument, counsel for the respondents relied upon Norman & Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd 1968 (1) SA 503 (T) F contending that the framers of the Rules could not have intended Rule 30 (5) to apply to a non-compliance with the provisions of Rule 35 (12), in view of the special sanction provided for in the latter Rule.

In my view the argument is not correct. The sanction provided for in Rule 35 (12) is, in my view, quite different in nature and effect from the kind G of sanction envisaged in Rule 30 (5). The sanction in Rule 35 (12) is of a negative nature, being to the effect that the party failing to comply with the notice shall not, save with the leave of the Court, use the document in question, provided that any other party may use such documents. It is a sanction that comes into operation automatically upon non-compliance with the provisions of the Rule. Rule 30 (5), on the other hand, operates in an H entirely different manner. Under that Rule a party making a request, or giving a notice, as the case may be, to which there is no response by the other party, may give a further notice to the other party that after the lapse of seven days application will be made for an order that the notice or request be complied with, or that the claim or defence be struck out, as the case may be. Failing compliance within the seven days mentioned, application may then be made to Court and the Court may make an appropriate order. That is a positive form of relief

Botha J

provided for and, as I have said, in my view it is quite different from the sanction contained in Rule 35 (12).

The position dealt with in Norman & Co (Pty) Ltd v Hansella Construction A Co (Pty) Ltd (supra) was quite different. In that case the Court had to deal with the inter-relationship between Rule 21 (6) and Rule 30 (5), and the conclusion arrived at in that case, that the general provisions of Rule 30 (5) do not apply to non-compliance with a request for further particulars, was based on the notional irreconcilability between the B nature of the provision contained in Rule 21 (6) and that of Rule 21 (6) and that of Rule 30 (5). In fact, a comparision of the two Rules makes it obvious that it could never have been intended that they should both apply in the same type of situation and the Court's judgment in that case was based on the maxim generalia specialibus non derogant.

C In the present case the position is different, however. There can be no inconsistency, I consider, between the sanction provided for in Rule 35 (12) and the procedure provided for in Rule 30 (5). A party who gives a notice under Rule 35 (12) may well not be content with the negative sanction of that Rule; it may be of vital importance to such a party to obtain sight of a document in possession of the other party. I can see no D reason why, that being so, the party giving the notice should not be able to make use of the procedure laid down in Rule 30 (5). I do not consider that there is sufficient basis for ascribing an intention to the framers of the Rules that the sanction of Rule 35 (12) should operate to the exclusion of the procedure of Rule 30 (5).

E The basis of the argument of counsel for the respondents in this regard in reality rested on the maxim expressio unius est exclusio alterius. That is a maxim that must be applied with great caution, as appears from numerous cases. I myself consider it to be no more than an expression of logic and whether it applies in a given situation or not is really dependent on F whether logic dictates that it should be applied or not. In the present case I can find no basis in logic why the provision of a negative sanction in Rule 35 (12) should operate to exclude the applicability of the provisions of Rule 30 (5).

It was also argued on behalf of the respondents, with reference to the former Rules of this Division, as discussed, for instance, in the case of G Erasmus v Slomowitz (2) 1938 TPD 242, that the fact that the previous Rule 54 has not been reproduced in the present Uniform Rules of Court justifies the inference that the sanction of sub-Rule (12) of Rule 35 of the new Rules was intended to be exhaustive. In my view there is no significance in the fact that Rule 54 has not been repeated in the new Rules in the H context of a provision such as Rule 35 (12), exactly because of the existence of a general provision such as Rule 30 (5) in question here. I have been assured by counsel for the respondents that in the old Rules of Court there was no Rule in general terms equivalent to Rule 30 (5) of the present Rules.

My conclusion on this first question, therefore, is that Rule 30 (5) does...