CASE HIGHLIGHTS

30 May 2024

Name Dispute: VIRGIN ENTERPRISES LIMITED (Applicant) vs VIRGIN CORPORATE (PTY) LIMITED (First Respondent) and COMPANIES AND INTELLECTUAL PROPERTY COMMISSION (CIPC) (Second Respondent) This application was brought in terms of section 160 of the Companies Act 71 of 2008 (the Act) for an order that the First Respondent’s name does not satisfy the requirements of section 11 of the Act and accordingly the First Respondent should be directed to change its name as provided for in s 160 (3) (b) (ii) of the Act. Mr. Rory James Richardson deposed an affidavit on behalf of the Applicant, he avers that the Applicant is a registered proprietor of 97 trademark and registrations for the world ‘Virgin’ in South Africa. Given the unopposed nature of this evidence it must now be treated as common cause. Mr. Richardson described the way the Virgin group has grown exponentially and has interest in some 60 Virgin branded businesses which operate across a diverse range of sectors including entertainment, health and wellness, money, people, technology, travel, at leisure. In addition, Mr. Richardson also stated that the Applicant has over the past 30 years has offered all types of goods and services and operated in many industries within South Africa. It appears that the only listed director of the First Respondent is Mr. Gabriel Pieter Visagie who is also listed as the only member of Virgin Industries CC with Registration number 2013/086947/07. Around May 2022 the Applicant was made aware of the First Respondent when the Applicant’s attorneys noticed that the company is registered with the Second Respondent. Following thereon, Applicant’s attorney addressed a letter of demand to the First Respondent requesting that it cease any and all use of the Virgin trademark and change the name of the company. A range of further correspondence was generated by Applicant’s attorneys. On 4 August 2022, the Applicant’s attorney received an email from Phillip Miller and Co. stating that they had received correspondence from the Applicant’s attorney and that their client’s name had been approved by the Second Respondent and that to the extent relevant, the Applicant’s attorney should approach the CIPC for any action that it requires as opposed to the First Respondent. Phillip Miller and Co. appeared to be the First Respondent’s auditors. Applicant’s attorney responded thereto stating that the Applicant was entitled to lodge a company name objection against the registration of the company name. Eventually Mr. Visagie informed the Applicant’s attorneys that he is no longer trading under the company name and that they should contact the new personal bookkeeper and auditor of the company, Mr. Stephan Olivier. Attempts to contact Mr. Olivier failed, hence the application was filed with the Tribunal. It is the Tribunal’s view that the distinctive and memorable feature of the First Respondent’s name Virgin Corporate (Pty) Ltd is framed by way of the use of the name ‘Virgin’ which is identical to the well-known and registered Virgin trademarks of the Applicant. It is further clear that the Applicant has always used its Virgin trademark in South Africa in relation to goods of high standard of quality and that the use of the ‘Virgin’ trademark is central to its various businesses. The Tribunal found that the First Respondent’s company name is confusing and/or deceptively similar to the Applicant’s registered Virgin trademark and that the First Respondent is in no way connected to the Applicant or to any of its businesses. The First Respondent’s company name fails to comply with section 11(2) (a) (b) and (c) of the Act. Therefore, the Applicant was entitled to relief as prayed. Order:

• The First Respondent was directed to change its company name to one which does not incorporate the ‘Virgin’ trademark or any other trademark made / word which is confusing and/or deceptively similar thereto;
• In the event that the First Respondent fails to comply with paragraph 1 of this order, the Companies and Intellectual Property Commission is directed within three months from the date of this order in terms of section 160 (3) (b) (i) read together with section 142 of the Companies Act to change the name of the First Respondent to K2013/086947/07 (Pty) Ltd as Respondent’s interim company name on the Companies Register.

  Social & Ethics Committee MTN ZAKHELE FUTHI (FR) LTD (Applicant)  The Applicant is a company duly incorporated in terms of the Company laws of South Africa. Belinda Mapongwana brought the application on behalf of the Applicant in terms of section 72(5)(b) of the Companies Act, was duly authorised to do so in terms of the resolution by the Applicant’s board of directors. According to the affidavit filed in support of this application, the Applicant applied for the renewal or extension of an exemption from the requirement to appoint a social and ethics committee. This implies that the Applicant previously successfully applied to be exempted from establishing social and ethics committee after its incorporation in 2016. It was submitted on behalf of the Applicant that the Applicant was incorporated on behalf of MTN Group Ltd in 2016 as a ring-fenced, special-purpose vehicle through which qualifying members of the black public could indirectly invest and hold shares in the MTN Group. It is contended that the Applicant’s financial performance is based entirely on the MTN Group share price. It was further stated that the Applicant cannot perform the required functions of the social and ethics committee because it does not have employees and its business activities and operations solely involve financial instruments in the form of the MTN Group Shares. It is alleged that the Applicant would be unable to contribute towards the social and economic development of the community in which it operates due to the limited exposure it has to the community. It was also alleged that the Applicant’s activities have no direct or indirect effect on the environment, health, and public safety. It appears that the Applicant does not interact with consumers. It is further alleged that the functions of the social and ethics committee are fulfilled and undertaken by the MTN group. In terms of Regulation 43(3)(a) of the Companies Regulations, 2011, a company that is required to have a social and ethics committee must constitute a social and ethics committee and appoint its first members within one year after meeting the criteria provided for in Regulation 26(2). This Tribunal is a creature of statute and unlike the High Court, it does not have inherent jurisdiction. Neither Section 72(5)(b) of the Companies Act nor Regulation 43 of the Companies Regulation provides this Tribunal with the power to order the renewal or extension of exemptions granted to companies not to establish social and ethics committees. In terms of Section 72(6) of the Companies Act, when this Tribunal granted an exemption, such an exemption is valid for five years or such a shorter period as the Tribunal may determine at the time of granting the exemption. The Tribunal was also not convinced by the Applicant’s assertion that it cannot establish the social and ethics committee because, among others, it has limited exposure to the community. If indeed, it is correct that the Applicant was incorporated to be a ‘special purpose vehicle through which qualifying members of the black public could indirectly invest and hold shares in MTN Group …’, then this means that there is a community that the Applicant serves which it has decided to financially empower. Once members of the so-called black public have invested their monies as invited, then the Applicant has a responsibility towards them which may necessitate the establishment of the social and ethics committee that will ensure that their interests are not prejudiced. However, it is worth noting that this Tribunal has the power in terms of section 72(5)(a) of the Companies Act to grant an exemption if it is satisfied that the Applicant has ‘… some form of formal mechanisms within its structures that substantially performs the function that would otherwise be performed by the social and ethics committee …’. Order:

• The Applicant’s was exempted from establishing a social and ethics committee for five years.

  ANNUAL GENERAL MEETING (AGM) SAA TECHNICAL SOC LIMITED (Applicant) The Applicant is registered in terms of the company laws of the Republic of South Africa. The Applicant filed an application requesting an extension to hold its AGM more than the statutory 15 months after the last AGM which was held on 30^th September 2022. The application was brought by the Applicant’s Companies Director Wellington Nkosikhona Nyuswa. The Applicant was duly authorized to make such an application. The Applicant had applied for an extension to hold its Annual General Meeting (AGM) after having failed to do so before 31^st May 2023. This was granted by the Companies Tribunal in case (CT0124ADJ2023). The company was unable to hold the AGM by 31st May 2023 since it now had a new Board and its Annual Financial statements were not yet ready. The Applicant requested a further extension or else it would be severely prejudiced. The Applicant requested that it be given until 30h September 2023 to hold it AGM to enable it to finalise its external audit process. The Tribunal was satisfied that good cause has was shown as to why the AGM could not be held within the statutory period required by the Act and the extension provided by the Tribunal. It had a new board and its financial statements needed to be finalized. Order:

• The Applicant is granted an extension to hold its AGM before 30th September 2023.