Goolam Ally Family Trust t/a Textile, Curtaining and Trimming v Textile, Curtaining and Trimming (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Kühn AJ
• Judgment Date: 28 August 1989
• Hearing Date: 18 March 1988
• Court: Cape Provincial Division

Kühn AJ:

The applicant is a retailer of fabrics. The respondent carries on a similar business. The applicant alleges that it carries on business H under the name Textile, Curtaining and Trimmings and its abbreviation is TCT at 40 Sir Lowry Road, Cape Town. In October 1986 the respondent registered a company called Textile, Curtaining & Trimmings (TCT) (Pty) Ltd. The applicant alleges that the names are identical and that the respondent is attempting to pass off its business as that of the I applicant. The respondent was asked to alter its registered name which was refused. The applicant applies for an order interdicting the respondent from commencing or conducting business under its registered name, ie Textile, Curtaining & Trimmings (TCT) (Pty) Ltd.

In his heads of argument Mr Immerman, who appeared for the respondent, J took the point in limine that there is no proper proof that the

Kühn AJ

A application was authorised by the applicant. The applicant is cited as a trust. There are two trustees. The supporting affidavit is signed by only one trustee and the point in limine is based on the fact that the application has not been authorised by the co-trustee.

The deed of donation which creates the trust is annexed to the B applicant's papers (GHA7). It makes provision for the appointment of two original trustees, namely Goolam Hafiz Ally and Fatima Ally (clause 4). In this regard a supporting affidavit signed by Goolam Hafiz Ally reads as follows:

'3.

I respectfully draw attention to the fact that I was appoined as one of the original trustees of the trust. My sister Fatima Ally was appointed as the other trustee. I have at all times been C applicant's managing trustee.

4.

There have been no changes to the said notarial deed of donation since it was entered into and my said sister and I have at all relevant times been the only trustees.'

It is clear, therefore, that the two trustees originally appointed were the only two trustees at the time the application was brought. Mr D Immerman submitted that the co-trustees must act jointly or the application should at least have been authorised by the co-trustee and that there is no proof that it has been so authorised. Nothing was made of the locus standi of the applicant (bearing in mind that it is not a juristic person with a separate legal identity) but I express no opinion on that point. The point for decision is whether or not the application E was...