Cases Calendar

 September 2020
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Name dispute:

SUN INTERNATIONAL (SOUTH AFRICA) LIMITED (Applicant) vs RAMA SUN CITY LTD (First Respondent) and COMPANIES and INTELLECTUAL PROPERTY COMMISSION (Commissioner of Companies) (Second Respondent)

The Applicant filed an application objecting the company name RAMA SUN CITY in terms of section 11(2)(a), (b) and (c)(i) of the Companies Act 71 of 2008 (Act). The Applicant is a subsidiary of the listed company Sun International Limited, both entities form part of what is referred to as the Sun International Group. The Applicant sought a relief that the First Respondent’s name RAMA SUN CITY be found not to be satisfactory of the requirements of sections mentioned above.

The documents in the application were served by the Sheriff on the First Respondent’s address of registered office as recorded by the Second Respondent, the Tribunal found that the application was adequately served. The Tribunal had a concern with the way in which the founding affidavit deposed to by Mr Thabo Felix Mosololi (Mr Mosololi) was commissioned as the Commissioner of oaths, Ms Shruti Singh, reflected the same address as the Applicant’s registered address. On investigation, it emerged that Ms Shruti Singh was or is senior legal advisor at Sun International Management Limited, hence her address.

According to regulation 7(1) of the Regulations Governing the Administering of an Oath or Affirmation published in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 19637, a “commissioner of oaths shall not administer an oath or affirmation relating to matter in which [she] has interest”. There is no definition of interest in the Peace and Commissioners of Oaths Act. In section 2 of the Companies Act it is explained what constitutes “related” or “interrelated” persons. This provision is a useful aid regarding the relationship between the Applicant and Sun International Management Limited, and by necessary extension Ms Singh, as the Commissioner of oaths.

The Applicant owns and operates internationally acclaimed resort in South Africa, Nigeria and which include Sun City, Carousel, Grandwest and Time Square Casino. The Applicant is also proprietor of the registered trade mark SUN CITY in many classes in South Africa. The trade mark was first used in 1979 in respect of a resort with the same name located in the North- West province of South Africa.

The First Respondent was registered as a private company on 13 September 2017. The Applicant became aware of the First Respondent’s name in “mid-February 2019” when it was brought to its attention by its attorneys. The attorneys were instructed to direct a letter of demand to the First Respondent in May 2019 which failed to yield a positive outcome for the Applicant. But, the First Respondent conceded fault in its inclusion of the words “SUN CITY” in the First Respondent’s name and explained the inclusion to have been an administrative error.

The Tribunal found that:

  • In terms of section 11(2)(a) that the First Respondent’s name “RAMA SUN CITY” and the Applicant’s trade mark “SUN CITY” are not the same. The inclusion of the word “RAMA” in the name is a sufficient or significant distinguishing element or factor.
  • In terms of section 11(2)(b), the Tribunal agreed with the Applicant that the dominant and most memorable feature in the First Respondent’s name RAMA SUN CITY are the words SUN CITY, which are identical to the Applicant’s trade mark: SUN CITY. In addition, the Tribunal found that the First respondent’s name is confusingly similar to the applicant’s trade mark SUN CITY.
  • Based on the finding above, it was not necessary for the Tribunal to consider the submissions made in support of the Applicant under section 11(2)(c)(i) of the Act.

Order:

  • The First Respondent’s registered company name “RAMA SUN CITY” does not satisfy the requirements of section 11(2)(b) of the Act;
  • The First Respondent is directed to choose a new name and file a notice of amendment to its Memorandum of Incorporation;
  • The Applicant is to serve this order through the Sheriff upon the First Respondent.
  • The First Respondent is directed to complete the activities ordered in b) hereof within 60 (sixty) days of service of this order upon the First Respondent, and
  • The First Respondent is liable for the costs of application of the Applicant at a party and party scale in terms of the tariffs of the High Court of South Africa.

 

Social and Ethics Committee (SEC)

INDGRO OUTSOURCING (PTY) LTD (Applicant)

On 27 and 28 April 2020 two of Applicant’s directors applied to the Tribunal for an exemption from appointing a Social and Ethics Committee (SEC) in terms of section 72(5) of the Act. The former application was supported by an affidavit, seemingly signed by the same directors stated above. Mr Guillaumé Marais claimed to be duly authorized as per a Resolution attached to the papers filed. The Applicant claimed to have exceeded the minimum Public Interest Score (PIS) of 500 points for the financial year ending February 2020 and that it was therefore required to appoint a SEC in terms of section 72(4), read with Regulation 43 of the Companies Regulations for an exemption from the requirement to appoint a SEC.

The Tribunal had to determine the following:

  • Whether the Applicant had met the Tribunal’s procedural requirements;
  • Whether it was reasonably necessary in the public interest to require the Applicant to have a SEC, having regard to the nature and extent of the Applicant’s exemption; and
  • Lastly, whether the Applicant had made out a proper case for exemption.

The Tribunal found that the attached affidavit to the papers indicated at the outset that it is made by more than one director, which is not proper in law. One of the directors has inserted “witness” near her signature, which is again not appropriate in an affidavit. Furthermore, the Special Board Resolution signed on 17 April 2019, and attached to Applicant’s papers, does not specifically grant Mr. Marais authority to lodge an application of this nature. The Tribunal’s view is that the reasons why the Applicant applied for exemption are not clear. The Applicant stated the following: “After evaluation that the Public Interest Score was above 500 in any Two of the past Five Financial years. The Company is operating on a day to day business in Temporary Employment Services and Recruitment. The reason why the Company’s PIS is above 500 is because they supply individuals to other registered companies as an employment agency on a temporary basis. The Monthly accounts are not managed or processed by a related member of the board of directors and is compiled internally. The company is not a subsidiary of a company that requires an appointment of a Social and Ethics Committee. At this stage, it is not required to appoint a SEC as the Company and its employees are managed by the Board and appointed individuals to assist with their needs and requirements as prescribed by the various acts: …”

The Tribunal found that Mr Marais’s did not have authority to represent the Applicant in the proceedings and the paucity of relevant information is fatal to the application. The application for exemption from the requirement to appoint the SEC was dismissed.

ORDER: Dismissed.

 

Directorship dispute

MICHAEL MOTAUNG (Applicant) vs PETER RAMENO MOTIA (Respondent)

The Applicant applied to the Tribunal for the removal of the Respondent as a director of European Safety Action (Pty) Limited. The dispute between the parties in this matter related to the alleged reckless intentions or negligent conduct of the Respondent who is alleged to have flouted the rules as a director of ESA. The Applicant alleged the following:

  • The Respondent neglected his duties as a director of ESA in that he privately conducted occupational health services trainings for various competitor companies, which companies are offering the same type of training as ESA.
  • The Respondent had closed the business account of ESA unilaterally and the business account remain closed.
  • The Respondent has never shown any remorse or interest to reopen the business account of ESA he unlawfully closed.
  • The closure of the business account has precipitated the immediate suspension of the contract that ESA secured with Dixon Batteries.

The Applicant filed the application with the Tribunal on the 22nd day of January 2020. In terms of Regulation 142(2) of the Company Regulations, the Applicant is required to serve a copy of the application and supporting affidavit on each respondent cited in the application, within 5 business days after filing it with the Tribunal. There was no proof of service of the application upon the Respondent. However, the Respondent did file an answer to the application through email communication dated 24 January 2020. Furthermore, the Respondent appeared at the hearing of the matter that was held on 27 January 2020. The Tribunal was satisfied that the matter was properly served upon the Respondent in terms Regulation 142 as well complied with Regulation 142(1).

The Tribunal found that the dispute between the parties had a history which was relevant to the determination of the current dispute. It was imperative for the Tribunal outline the historical background in order to put the issues involved in the current application into perspective, namely:

  • On 25 November 2019, the Applicant did file an application for an order to compel the Respondent to open the business bank account that he unilaterally closed during October 2019.
  • The application was heard by the Tribunal on the 19th day of December 2019. That application was amicably settled by the parties and they signed a settlement agreement which forms part of annexures in the current application.

Notwithstanding the agreement of the parties recorded above, the two directors failed to open the business account of ESA. During the hearing of the matter on 27 January 2020, each director blamed the other for the failure to open the bank account. The Applicant then brought an urgent application for the removal of the Respondent as director of ESA relying on sections 180 to 184 of the Act read together with regulation 147 of the Regulations. Sections 180 to 184 of the Act deal with Tribunal adjudication procedures while Regulation 147 of the Regulations deals with applications for condonation of late filing of a document, or to request an extension or reduction of the time to file a document. These applications are brought by way of filing form CTR 147.

The Tribunal’s view is that the Applicant complied with this requirement and everything is therefore in order. However, the Regulations as they currently stand do not provide for bringing of urgent applications before the Companies Tribunal. Therefore, the Tribunal had to follow the practice and procedure followed by the High Court when dealing with this urgent application. High Court Rules (Uniform Rules of Court) Rule 6(12), deals with launching of urgent applications in the High Court and the relevant provisions read as follows:

Rule “6(12) (a) In urgent applications the court or a judge may dispense with the forms and service provided for in these Rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these Rules) as to it seems meet.

(b) In every affidavit or petition filed in support of any application under paragraph (a) of this sub rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.

(c) A person against whom an order was granted in his absence in an urgent application may by notice set down the matter for reconsideration of the order.”

The Applicant did not provide reasons in the founding papers to justify the bringing of the current application on an urgent basis. In addition, the conduct of the Applicant after the launching of the current application is not consistent with a party who is seeking urgent relief from the Tribunal. This application was heard on 27 January 2020 and was postponed to 07 February 2020 by agreement between the parties. The reason for the postponement was to afford the parties an opportunity to go to the bank and open a bank account. The dispute between the parties seems to be rooted on the unilateral and unlawful closure of the bank account by the Respondent.

On 04 February 2020, the Respondent filed a Notice of Withdrawal or Postponement which indicated that the Parties have agreed to have the application postponed until further notice. The Tribunal’s view is that urgent applications should be treated urgently and should always be disposed of urgently as well. The urgency of this matter was therefore defeated by the conduct of both parties as outlined above.

The Tribunal was not persuaded to have this urgent application postponed sine die. The Tribunal was not satisfied that this current application was urgent. The Tribunal’s view was that this application should be struck from the urgent Tribunal roll for lack of urgency. The Applicant is more than welcome to pursue the application for the removal of the Respondent on the normal course in line with the applicable Regulations.

ORDER: Dismissed, no order of costs.