North-West University (Applicant) vs 4 De NWU Trading (First Respondent) and Commissioner of the Companies and Intellectual Property Commission (CIPC) (Second Respondent)
The Applicant is a public higher education institution and a juristic person, established in terms of the Higher Education Act 101 of 1997. The First Respondent is a private company registered under the company laws of South Africa under registration number 2017/334516/07, having its registered address at 110 Avril Flats, 484 Leyds Street, Sunnyside, Pretoria, Gauteng, 0002. The Second Respondent (CIPC) is established in terms of Section 189 of the Companies Act 71 of 2008 (the Act). The Applicant cited the Second Respondent in an official capacity as the person responsible for the function of the CIPC in terms of the Act. The address of the Second Respondent is the DTI Campus, Block F, 77 Meintjies Street, Sunnyside, Pretoria, Gauteng, 0002.
The Applicant filed a default order application in terms of section 160 of the Act for an order confirming that the First Respondent’s name does not satisfy the requirements of section 11 (a) and/or (b) and/or (c) of the Act, and that the Companies Tribunal (the Tribunal) makes an order directing the First Respondent to choose a new name, as provided for in Section 160(3)(b)(ii) of the Act. The Applicant lodged its application under section 160(1) of the Act by filing the Form CTR 142 and a supporting affidavit as prescribed, objecting to the registration of the company name “4 DE NWU TRADING” under registration no. 2017/334516/07.
Maria Magdelena Verhoef, the Applicant’s Registrar deposed the founding affidavit supporting the application. The Tribunal perused the Applicant’s file, did not find a resolution authorizing the deponent to depose to the affidavit in support of the application. The facts and the evidence in support of the default application in terms of Regulation 153 appear from the affidavit deposed to by Chezanne Haigh, an admitted attorney of the High Court of South Africa, practicing as a senior associate of Kisch Africa Incorporated, the Applicant’s attorneys of record.
According to Regulation 142(2), the Applicant must serve the application on each of the respondent named in the application within five business days of filing the application with the Tribunal. Regulation 153(1) of the Regulations promulgated under the Act empowers the Tribunal to issue default orders in instances where a person or persons who was served with an initiating document has not filed a response within the prescribed period, namely, within 20 days, as per Regulation 143(2). Regulation 7(1) prescribes that a notice or document to be delivered, for any purpose contemplated in the Act or the Regulations, may be delivered in any manner as contemplated in sections 6 (10) and (11) of the CA or as set out in Table CR 3. To grant the relief sought by the Applicant, the Tribunal must determine whether the application is in order, i.e., that the Applicant has adhered to the relevant timeframes, prescribed forms, and procedures.
The Deputy Sheriff could not locate the registered address of the First Respondent. Regulation 7(3) provides that – “If, in a particular manner, it proves impossible to deliver a document in any manner provided for in the Act or these regulations–
(a) if any person other than the Tribunal is required to deliver the document, the person may apply to either the Tribunal or the High Court for an order of substituted service; or
(b) if the Tribunal is required to deliver the document, the recording officer of the Tribunal concerned may apply to the High Court for an order of substituted service.”
The Tribunal’s view was that the Applicant was not left without a remedy when it could not deliver the application to the First Respondent at the registered address recorded at the CIPC. The Applicant chose not to utilize the provisions of the Regulation to aid it in its obligation to serve the application and the supporting document on the First Respondent, thus meeting its audi alterum partum obligations and giving the First Respondent an opportunity to respond to the evidence against it. The Tribunal had to consider whether it may mero motu condone in terms of Regulation 154(3). The Tribunal concluded that this is not an instance where it could mero motu condone the non-delivery of the application to the First Respondent, mainly because Regulation 7 (3) (a) prescribes that in such a situation as the Applicant found itself, the Applicant may apply to the Tribunal or the High Court for substituted service.
The Applicant joined the Second Respondent in this application for purposes of notice, and that the Applicant sought no relief against the Second Respondent, should the Second Respondent not oppose the relief the Applicant seeks. The Applicant joined the Second Respondent for the purposes of notice and for the Tribunal to “Order the Second Respondent to change the First Respondent’s company name to its registration number, i.e., “2017/334516/07”; …” The Applicant did not provide any evidence before the Tribunal that it had affected service of the application and supporting documentation on the Second Respondent either, as required in terms of Regulation 142(1) of the Act.
The Tribunal found that no persons were served with an initiating document to which they had to file a response within the prescribed 20 (twenty) days. Therefore, the Applicant failed to make out a case for the main application to be considered on a default basis against the First and the Second Respondents.
Setso Phineas Ratlou (Applicant) vs Nompi Beu Ndweni (Respondent)
The Applicant applied to the Tribunal to remove the Respondent as a Director of the company in terms of section 71(8) of the Companies Act 71 of 2008 (“the Act”), alleging that the Respondent has been neglected or derelict in the performance of her dues as a director, as per s 71(3)(b) of the Act. As a result, the Applicant asserted that the Respondent was disrupting the proper business operations of the Company.
On 26 October 2020, the Applicant and the Respondent registered Tsalanang Secure Solutions Proprietary Limited (registration number 2020/806836/07) (“the Company”). Based on the documents before the Tribunal, the Applicant and the Respondent are the only two directors of the Company. On 18 November 2022, the Applicant filed an application to the Tribunal for the above-mentioned relief; an affidavit deposed to by the Applicant was filed in support thereof. On 21 November 2022, the Applicant emailed the Respondent at an email address marked as firstname.lastname@example.org. This Tribunal issued the date-stamped Form CTR 142 to the Applicant on 22 November 2022.
On 6 January 2023, the Applicant applied in terms of Form CTR145 to the Tribunal for a default order that the Respondent be removed as a director of the Company. This was accompanied by a further affidavit from the Applicant dated 5 January 2023. A fundamental requirement of this Tribunal is that the administrative procedure must be complied with. Even more important, compliance is also key in applications that involves removal of a director from a company. This Tribunal’s position is much the same as a court in this instance (i.e., it is not merely a rubberstamp). This Tribunal has a duty to investigate the matter to be satisfied that the Applicant has made an appropriate case for the Tribunal to make an order.
The Tribunal, having read the applicable law, i.e. Regulations 142 and 153, the Tribunal was not satisfied that the Applicant has complied with Regulation 142(2) for the following reasons:
- The Applicant was required to serve a copy of the application together with a supporting Affidavit on the Respondent within 5 business days after filing it with this Tribunal. All that was provided to the Tribunal is the Delivery Email. While it is noted that an attachment was indicated to have been attached to the Delivery Email, this attachment was not included in the Applicant’s papers nor have delivery or read receipts confirming transmission to the recipient’s email address. Therefore, the Tribunal could not confirm if this requirement has been fulfilled.
- The Delivery Email is dated 21 November 2022. The application was only stamped by this Tribunal on 22 November 2022. It is therefore not known what document the Applicant delivered to the Respondent because Regulation 142(2) requires the application and Affidavit to be served within 5 business days after filing it. The Applicant, therefore, delivered something prior to filing it with this Tribunal. The Tribunal cannot condone this conduct without the necessary condonation application being made.
- Lastly, in the Delivery Email furnished by the Applicant, the Respondent’s email address was marked as email@example.com. Table CR3 in the Companies Regulations provides that insofar as delivery of documents by electronic mail is concerned, sending the notice or copy of the document by electronic mail is a valid method of delivery if the person has an address for receiving electronic mail. The Tribunal does not have evidence that this is an email address either owned or used by the Respondent and that the Respondent did in fact receive the Delivery Email. The email address is also not listed on the CIPC disclosure certificate submitted in the papers. Therefore, the Tribunal was not in possession of any evidence as to conclusively show that the Respondent received the filed, stamped application and supporting Affidavit within the prescribed period.
As this application involves a request by the Applicant to remove the Respondent as a director of the Company under Section 71(8) of the Act, the necessity for due and proper notice of such application is elevated. It is imperative that in an application of this nature, the Respondent is afforded a reasonable opportunity to consider the allegation and elect as to whether she would like to make a presentation in respect thereof.
Annual General Meeting
DENEL Soc Limited: Ex parte application
The Applicant is registered in terms of the company laws of the Republic of South Africa. The application was bought by the Applicant’s Acting Chief Financial Officer and Director of Denel SOC, THANDEKA NOSIPHO SABELA (the deponent) duly authorized by the Board of Directors to act on behalf of the company.
The deponent stated inter alia that:
- In terms of section 12 of the Memorandum of Incorporation the board shall convene an AGM no later than 15 (fifteen) months after the date of the previous AGM or within an extended me allowed by the Companies Tribunal.
- Denel is awaing the finalisaon of the Annual Financial Statements (AFS). The delay in finalising the AFS is due to going concern concerns, uncertainty of government funding support and inadequate resources to finalise the AFS and conclude the external audit.
- It was envisaged that the 2021 Annual Financial Statements would be submitted by end of November 2022, with the audit ending at approximately end of February 2023. Further to that the 2022 Annual Financial Statements will be submitted end of February 2023, with an approximate end of audit by July 2023.
The Applicant sought an extension to hold the next AGM for Financial Year 2021 of the Applicant by no later than 30 April 2023. The Tribunal was satisfied that good cause has been shown as to why the AGM could not be held within the statutory period required by the Act and by the Tribunal.
Order: The Applicant was granted an extension to hold its AGM no later than 30 April 2023.
Social and Ethics Commitee
WMA Africas (Pty) Ltd: Ex parte application
The Applicant is a company duly incorporated in accordance with the company laws of South Africa, having its registered address at Suite 108-109 Mount Quray Street, Midlands Office, Midlands Estate, Gauteng, 1692. The Applicant applied to the Companies Tribunal for an exemption from appointing a Social and Ethics Committee (“SEC”) in terms of section 72 (5) of the Companies Act 71 of 2008 (“the Act”) read with Regulation 43 of the Companies Regulaons (“the Regulaons”).
Mr Kobus Keulder deposed the founding affidavit in the CTR142 form, one of Applicant’s two Directors, duly authorised. The Applicant’s core business is to source and export ore and metals for its sole shareholder: World Metals & Alloys FZC, which is based in Dubai. The applicant employs five people and operates out of a small, rented office. The public interest score (“PIS”) of the Applicant exceeded 500 points in the past two financial years, which, according to Mr Keulder, was due to its high annual turnover driven by volume, US Dollar-Rand exchange rate, and the value of commodities sourced. The Applicant submitted that, due to the limited nature and extent of its business, it is not reasonably necessary in the public interest for it to establish an SEC. Furthermore, the Applicant attached as its supporting documentation, its annual financial statements for the past two years. The Applicant argued that to establish a functioning SEC requires the appointment of a non-executive director and executive director, which would add to its overhead costs.
The Companies Tribunal found that the Applicant had made out a case to be exempted from the appointment of SEC in terms of section 72(5) of the Act.
Order: Granted for three years.