Hillock and Another v Hilsage Investments (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Botha JA, Wessels JA, Trollip JA, Rabie JA and Muller JA
• Judgment Date: 21 November 1974
• Citation: 1975 (1) SA 508 (A)
• Hearing Date: 08 November 1974
• Court: Appellate Division

Muller, J.A.:

In two separate actions, instituted in the Witwatersrand Local Division, the respondent company (hereinafter referred to as Hilsage) claimed from another company, National Exposition (Pty.) Ltd. (referred to hereinafter as National Exposition) and from the directors of the last-mentioned company, five in number, jointly and H severally, a total sum of R39 664,80 as rent due under a contract of lease.

Hilsage based its claim on a written contract of lease entered into between it, as lessor, and a company, Hirba (Pty.) Ltd. (to which I shall refer simply as Hirba), in terms whereof the last-mentioned company hired certain premises situated in Mayfair, Johannesburg, for a period of eight years as from 1 January 1971. It was alleged in the declaration that, by a subsequent agreement of assignment, concluded with the consent of Hilsage, National Exposition.

Muller JA

"assumed all the rights and obligations undertaken by the said lessee, Hirba, in favour of the plaintiff (Hilsage) in terms of the aforementioned lease".

It was further alleged that the directors of Hilsage were liable jointly and severally for the rent claimed by reason of a written deed of suretyship executed by them on 4 October 1971, in terms whereof they bound themselves as sureties and A co-principal debtors for the obligations of National Exposition.

Three of the directors of National Exposition defended the said actions. They were the two applicants (Hillock and Reynecke) and another director, Dennis Alfred Collins. Although admitting the original contract of lease with Hirba, and that they had B signed the deed of suretyship relied upon by the plaintiff, they pleaded

(a)

a denial that National Exposition "ever assumed any of the rights or obligations undertaken by the lessee, Hirba (Pty.) Ltd., either as alleged or at all",

and, in the alternative,

(b)

that "at all material times the premises leased were to the knowledge of the plaintiff never capable of being used for the purpose for C which they were let", and that Hilsage was at all material times unable to utilise the premises for the said purpose because it would "have been illegal for the premises to be used" for that purpose.

D By agreement the two actions were consolidated and they proceeded as one at the trial. The trial Court (COETZEE, J.), found in favour of the plaintiff and ordered payment by the two applicants and Collins, jointly and severally, of the rentals claimed. Judgment was given on 15 March 1974 and it is reported E in 1974 (3) S. A. 346 (Hilsage Investments (Pty.) Ltd. v National Exposition (Pty.) Ltd. and Others). Unless otherwise stated, all references hereinafter, merely by citing the page and marginal letters, are references to the reported judgment.

On 2 April 1974 notices of appeal were lodged with the Registrar of this Court on behalf of the two applicants. (In passing, it may be mentioned that a notice of appeal was also F lodged on behalf of Collins. However, before the appeal was set down for hearing, the attorneys of record notified the Registrar that they were no longer acting on his behalf, and there was no appearance for him at the hearing).

The requisite number of copies of the record of appeal were G lodged with the Registrar of this Court on 17 July 1974 and this was followed by an application, on notice of motion, for condonation of the applicants' failure to lodge the aforementioned copies of the record timeously, in compliance with the Rules of this Division (Rule 5 (4) (b)).

When the aforementioned application for condonation was heard on 8 November 1974 (the date fixed for the hearing of the H appeal), the matter was opposed on behalf of the respondent. The Court heard argument on the application and on the appeal.

From the affidavits filed in support of the application, it appears that, after judgment had been given (on 15 March 1974) and appeal had been noted (on 2 April 1974), the matter was diarised in the office of the attorneys for the applicants for attention at a future date, and that nothing was done to have the record of appeal prepared until 29 May

Muller JA

1974. In this regard the attorney concerned explains in his affidavit

"The reason why I attempted to have the said record typed at such a late stage, was due to the fact that the file relating to the appeal had been diarised incorrectly in the applicants' attorneys office, as a result of which the file was removed from the filing system approximately two weeks after the day on which it should have come to my attention."

A When the matter was brought to his attention (presumably on 29 May 1974) the said attorney instructed a clerk in his office to obtain the record from the office of the Registrar of the Court a quo so as to enable Lubbe Recordings (Pty.) Ltd...