Trust Sentrum (Kaapstad) (Edms) Bpk and Another v Zevenberg and Another

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Berman J
• Judgment Date: 24 May 1988
• Citation: 1989 (1) SA 145 (C)

Trust Sentrum (Kaapstad) (Edms) Bpk and Another v Zevenberg and Another
1989 (1) SA 145 (C)

1989 (1) SA p145

Citation	1989 (1) SA 145 (C)
Court	Cape Provincial Division
Judge	Berman J
Heard	March 24, 1988; March 28, 1988
Judgment	May 24, 1988

Flynote : Sleutelwoorde G

Discovery and inspection — Production of documents — Uniform Rule of Court 38(1)(b) — Application to compel compliance with subpoena duces tecum — Documents required by defendant in main action to qualify H expert witness to give evidence — Respondent refusing on basis that respondent not a witness in main action — Objection circumvented by applicant indicating intention to call respondent as witness.

Evidence — Production and admission of — Privilege claimed I — Confidentiality between respondent, as sole repository of body of information collected from various hoteliers, and hoteliers not a privilege contemplated by Uniform Rule of Court 38(1)(b) — Not entitled to withhold documentation if incorrect but bona fide claim of privilege — Required to satisfy Registrar or Court that claim of privilege J legally justified.

1989 (1) SA p146

A Costs — Deprivation of successful party of costs — Punitive award — Defence based on high moral or ethical standards no reason for depriving successful party of costs.

Headnote : Kopnota

First respondent was the sole repository and source of a body of B information, collected from various hoteliers in the Republic, and needed by the applicant's witness to qualify himself to give evidence on applicant's behalf. To obtain access to this information, applicant's attorney had caused a subpoena duces tecum to be issued and served on first respondent, calling on him to produce the documentation to the Registrar. He refused, asserting that the documentation would be at Court on the opening day of the trial and access thereto allowed only if ordered by the Court. Applicant thereupon launched an urgent C application in terms of Uniform Rule of Court 38(1)(b) for an order directing the first respondent, alternatively the second respondent, alternatively both respondents jointly, to deliver to the Registrar certain specified documents, detailed information and statistics. The application was opposed.

Held, with regard to respondent's argument that it was not competent for the applicant to call in aid the provisions of Rule 38(1)(b) since these were available only where the party subpoenaed was to be called as D a witness at the trial and here the applicant's intention had been simply to lay its hands on certain information in the respondent's possession, that such objection was circumvented by applicant indicating that it intended to call the respondent as a witness and therefore it was unnecessary to hold that the word 'witness' in the Rule meant 'person', though the Court was of the opinion that that was what the draftsman had intended.

E Held, further, that the claim of confidentiality between first respondent and the hoteliers supplying him with the information sought by applicant did not constitute a privilege contemplated by Rule 38(1)(b) and therefore there was no basis for refusing to comply with the subpoena. A bona fide belief that the privilege claimed was legally justified was not sufficient to entitle the party claiming such to refuse to comply with the subpoena and the Registrar or Court had to be satisfied that the privilege claimed was legally justified.

F Held, further, with regard to respondent's argument that the production of the documentation would constitute a breach of the contract between respondent and the hoteliers in terms of which respondent had undertaken to respect and ensure the documentation's confidentiality, and that, in any event, respondent was bound not to release the documentation in the absence of a Court order, that it had little basis since the respondent had not consulted the hoteliers before refusing to comply with the subpoena and, further, the hoteliers had indicated that they had G no objection to the documentation being produced.

Held, further, with regard to respondent's request for an order for costs against the successful applicants on the basis that they had proceeded to Court as a matter of urgency without waiting for respondent's response to an offer made by the applicant to respect the confidentiality of the documentation, that the offer had never been accepted by the respondent and as at the date on which the application was launched the offer was no longer open for acceptance: applicant H was under no obligation to undertake the provision of confidentiality insofar as the documentation sought was concerned and the suggestion that the applicants had been intractable or stubborn was groundless. A defence based on high moral or ethical standards was no reason to deprive a successful party of costs. Application granted.

Case Information

Application to compel production of documentary evidence in terms I of Uniform Rule of Court 38(1)(b). The facts appear from the reasons for judgment.

P L Hodes SC (with him L S Kuschke ) for the applicants.

H M Scholtz for the respondents.

J Cur adv vult.

1989 (1) SA p147

A [The Court granted an order on 28 March 1988 and handed down the following reasons for judgment on 24 May 1988.]

Judgment

Berman J:

In January 1988 the Municipality of the City of Cape Town ('the Municipality') launched an urgent application against inter B alia first applicant in which it sought an urgent order compelling first applicant to re-open the Heerengracht Hotel pursuant to the terms of an agreement between these parties concluded some years ago whereunder first applicant was bound to conduct a luxury hotel on a particular site in the city for 25 years, which hotel it had closed down.

C Prior to the hearing applicants and the Municipality agreed that the application would not be pursued, but that the matter would be referred to trial. Because it was accepted that the matter was one of urgency, it was arranged with the approval of the Judge President that the trial would commence on 19 April 1988. The parties to the action were accordingly preparing for this trial during March 1988, and one of D the defences raised by applicants therein is that, even if it is found that the Municipality is entitled to enforce the agreement, the Court should not order specific performance at its instance inasmuch as the opening of the Cape Sun Hotel in late 1983 (for which the Municipality was alleged to bear responsibility in some measure) adversely affected the financial viability of the Heerengracht Hotel. This E viability, applicants contend, is a principal issue in the trial; this contention is not challenged. Applicants further contend that it will be necessary for them to call an expert witness to testify 'on trends in the hotel industry in Cape Town and the effect of the opening of the Cape Sun Hotel on the Heerengracht Hotel', involving an analysis of F hotel occupancy figures as well as the rates charged for accommodation by various hotels. First respondent is, it would seem, the sole repository and source of a collected body of information which is needed by applicants' expert witness to qualify himself to give evidence on their behalf, this information having been collected by first respondent (as director of second respondent's Bureau of Financial Analysis) G from participating hoteliers in the Republic and which is distributed to them on a monthly basis. To obtain access to this 'collected body of information' applicants' attorneys caused a subpoena to be issued on 9 March 1988 calling upon first respondent to produce certain documents to the Registrar of this Court (which...