Case Highlights

21 July 2023

Annual General Meeting: South African Airways SOC Ltd The Applicant applied to the Companies Tribunal (the Tribunal) in terms of section 61 (7) of the Companies Act 71 of 2008 and Regulation 142 of the Companies Act for an extension to hold its 2023 annual general meeting (“AGM”). Zwelifikile Mhlontlo, the Interim Chief Financial Officer & Director filed an application on behalf of Applicant. The reason for the application was that the company was awaiting the finalisation of the external audit process.   SAA is a company contemplated in it terms of Schedule 5 of the Act. The company is required to convene an annual general meeting (AGM) of its shareholders. The Applicant held its last AGM on 25 February 2022, and had to convene its next AGM by no later than 24 May 2023. The Applicant’s Board held a meeting on 23 February 2023, they approved a decision to file an application to the Tribunal for extension to hold its AGM; they realized that it was unlikely that the 24 May 2023 deadline to convene AGM was going to be met due to ongoing audit process.   The Applicant expected the audit process to be concluded during May 2023; followed by governance processes including consideration and approval of the audited financial statements, submission to the Executive Authority and Parliament, which the Applicant estimated would take about three months to 30 August 2023. The Applicant attached confirmation by external auditors that the audit process was underway. Therefore, the Applicant, requested the Tribunal to grant it relief to hold its AGM by 30 September 2023.   The Tribunal was satisfied that the Applicant had shown good cause for the extension to convene AGM by 30 September 2023. Order: Granted.   Social & Ethics Committee (SEC) K2011141315 South Africa (RF) (Pty) Ltd The Applicant filed an application for exemption from establishing SEC in terms of Section 72 (5) and the regulations in terms of the Companies Act. The application was filed by Zintle Mjali (duly authorized) on behalf of the Applicant. In support of the application, the Applicant stated that:\

• The Applicant is a simple investment holding company and only functions as a vehicle to hold shares to ring fence the risks and rewards associated with a particular investment activity;
• Such investment activity comprises owning shares in an infrastructure investment and receiving dividends and proceeds, as well as any interest and capital payments on shareholder loans it may have provided. The Applicant’s sole investment is a 25% direct shareholding in Oakleaf Investments 79 (RF) Proprietary Limited, the Lesedi Power Plant, which is approximately 75MW solar PV park in the Northern Cape;
• The Applicant is 70% owned by Kuaji Energy Capital Investments Propriety Limited which is an investment holding vehicle;
• The Applicant is furthermore 30% owned by the Lesedi Solar Park Trust Company (Pty) Limited, which in turn, is 100% owned by the Lesedi Solar Park Trust, a non-profit trust which funds social development programmes provided by DGMT PBO to benefit the local communities living within a 50km radius of the plant; and
• The Applicant has no employees and no workplace.

  Furthermore, the Applicant stated that:

• The Applicant falls within the category of companies required in terms of Section 72 of the Companies Act of 2008 and the regulations to appoint a Social and Ethics Committee.
• The Applicant’s directors are, however, of the view that it is not reasonably necessary in the public interest to require the Company to have a Social and Ethics Committee, having regard to the nature and extent of its activities and, accordingly, an exemption application in terms of Section 72(5) of the Companies Act of 2008 is being directed to the Companies Tribunal on this basis.
• Considering the responsibilities of a SEC, the nature and extent of the activities of company, the Applicant advanced that it is not in the public interest to require the Company to have a SEC.

  In order to grant an exemption from the appointment of a SEC one has to use the calculation of the PIS as it has the effect of “policing” compliance with the law. The Applicant failed to indicate their Public Interest Score (PIS) in the instant application, it’s the Tribunal’s view that non-reference to the PIS was fatal to the Applicant’s case. The application was hurried and does not address essential requirements of the Act. There was no indication as to whether the holding companies of the Applicant have SECs as required by the Act in Regulation 43(5), in which case the provisions of Regulation 43 (2)(a) would apply.   Therefore, it was the Tribunal’s view that it is reasonably in the public interest to require the company to have a SEC having regard to the nature and extent of the activities of the Applicant. Order: The Applicant’s was denied exemption from appointing SEC.   Review Nonkululeko Nombuso Nkabinde (Applicant) vs Companies and Intellectual Property Commission (Respondent) The Applicant applied for relief to the Companies Tribunal in terms of section 11(2) of the Act by completing Form CTR142 on 5 December 2022. On the 27^th September 2022, the Applicant applied to the CIPC to reserve the following names: "TROLI and TROLLI". On the same day, the CIPC issued a Notice Refusing Name Reservation (Form CoR9.5) indicating that:

• the proposed name is deceptively and confusingly similar to names already on the register as contemplated in section 11(2) of the Act.
• A distinguishing element must be inserted that will sufficiently be capable of differentiating their name from the names already registered; or
• If the Applicant files a letter of consent from the similarly named entities, then it can be registered.

The CIPC's Form CoR9.5 does not comply with the requirements of section 12(3)(a)(i) of the Act as it fails to require the Applicant to serve a copy of the application and name reservation on any person. It was necessary for the Tribunal to deal with the Applicant's submissions as to CIPC’s linear treatment of the names "TROLI" and "TROLLI".

• firstly, it may be that the name "TROLI" is confusingly similar to the name "TROLLI" and vice versa;
• the fact that the companies with the name "TROLI" may be in deregistration process does not take anything further. The fact remains that they are currently registered (noting that one is finally deregistered)

Section 158(b)(ii) compels both the Tribunal and the CIPC, when determining a matter brought before it, where if any provision of the Companies Act or a document in terms of the Companies Act, read in its context, can be reasonably construed to have more than one meaning, must prefer the meaning that best promotes the spirit and purpose of the Companies Act and will best improve the realisation and enjoyment of rights.   Tribunal has the exclusive jurisdiction to settle disputes as to whether a name contravenes sections 11(2)(b) or (c), and not the CIPC. By issuing the Form CoR9.5, the CIPC is unlawfully appropriating to it, powers vested exclusively in the Tribunal as per section 12(3)(a)(ii). Insofar as the application for TROLLI is concerned, section 11(2)(a) would be applicable and therefore the CIPC was entitled to reject the reservation of this name. Order:

• the decision of the CIPC in terms of CoR9.5 dated 27 September 2022 under reference 9373994038, insofar as it relates to the reservation of the name "TROLI" only, is hereby reviewed, and set aside; and
• the CIPC is directed, insofar as it relates to the reservation of the name "TROLI" only, to reconsider the application taking into account section 12(3)(a) read with Regulation 9(4).