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 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:

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:

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

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

2.3. The date when: _

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 -

(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."

1995	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.

"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

"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."

Judge said:
"There are undoubtedly differences between the wording of Rule 35(12) and the other subrules relating to discovery, for example subrules (1),

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.

 

(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	"

"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.

"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."

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.

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

"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."

In the result, I make the following order:

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.