Hillview Properties (Pty) Ltd v Strijdom and Another

• Jurisdiction: South Africa
• Judge: Hiemstra J
• Judgment Date: 04 December 1974
• Court: Transvaal Provincial Division
• Citation: 1978 (1) SA 302 (T)

Hiemstra, J.:

The appellant company is the owner of Stand 222 Marshalltown, on which is situated the Gresham Hotel. There is in existence a deed of lease concluded between the applicant company and Finlandia Hotels (Pty.) Ltd., a private company conducting an hotel business in the building. The applicant seeks ejectment of the tenant and cites as respondent one Petrus Johannes Mattheus Strijdom. The company

Hiemstra J

Finlandia Hotels was not cited. The reasons therefor will soon become apparent.

The respondent advanced as a first defence that he is protected by sec. A 121 of the Liquor Act, 30 of 1928, which requires six months' notice to be given to a tenant who is the holder of a liquor licence. This point was conceded and the applicant relied solely on an alternative cause of action, namely that the lease was a nullity in law. This argument rested on an allegation that there was no such company on the register as Finlandia Hotels (Pty.) Ltd. at the date of the lease, which was 18 July B 1974. For that reason the manager, Strijdom, was personally cited as respondent.

It appears that the relevant company, of which Strijdom is a director, is not Finlandia but Roybent (Pty.) Ltd. A special resolution was taken by Roybent on 6 February 1974 that application would be made for a change of name. The Registrar of Companies on 18 February notified Roybent that the C new name had been reserved for two months. Because of various administrative ineptitudes the application was not pursued, but the board of Roybent began using the name Finlandia. That was done when the present lease was entered into on 28 July, and also in a large number of other contracts. I accept that this was done in the bona fide belief that the D name was changed. In fact such change was only completed on 12 November.

The question for decision is now whether a contract concluded ostensibly with a company, but which company prematurely uses a new name which it intends to adopt, is valid and binding. In this case no aspects of fraud arise. The applicant says an inducing factor which carried weight with it E was that Finlandia was represented as a company which owned and controlled a group of hotels. Roybent in fact controlled a group of hotels, so that this was only a formal misrepresentation, made bona fide and with no intent to deceive. As soon as the name was registered this aspect rectified itself. By the time the application was heard, the change of F ...