---

 

IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

(“The Tribunal”)                                                               CASE NO: CT008May2014

 

Re: In an Application in terms of Section 11(2) (a)

(i) and (iii) of the Companies Act 71 of 2008 (“the

Act”) with regard to refusal of a name reservation.

 

In the matter of:
EMBASSY OF DENMARK	THE APPLICANT

 

Decision delivered on 3 November 2014

 

DECISION

 

INTRODUCTION:

 

[1]                 The Applicant is the Embassy of Denmark which is situated at iParioli Office Park, Block B2, 1166 Park Street, Hatfield, Pretoria and brings an application in terms of Section 11(2)(a)(i) and (iii) of the Act under cover of Form CTR 142 and a supporting affidavit that the name “Cult South Africa” be reserved as a company name for a company called BEV.CON ApS which CIPC has refused to reserve (on the basis that a comparative name” S A CULTIVE DESIGN AND DECORATION CO-OPERATIVE LTD” exists on its records.

 

PROCEDURE:

 

[2]                 The Applicant made application on behalf of a company called BEV.CON ApS (which is a Danish company) to reverse the decision of CIPC but has not deemed it fit to serve the application on CIPC nor is CIPC a respondent herein to enable CIPC to respond to this application why such a decision not to reserve the aforesaid name.

[3]                 It can be noted that although S.T.Korpinen is a trade officer of the Embassy of Denmark, and claims to be the authorized representative of the Danish company BEV.CON ApS, she has not deemed it fit to provide a resolution/.mandate from that company or a notarized Power of Attorney to prove her authority to make the application. There is no evidence or explanation provided why the Embassy of Denmark is making the application and on what basis, nor has any documentation provided to show the Embassy has the authority to do so.

 

EVALUATION:

 

[4]                 In view of the aforementioned lack of authority, it is pointed out that the application is in effect defective. Secondly, although the Applicant has mentioned in terms of which section of the Act it applies in the CTR 142 form , it has not explained the reasoning for the claim that there is a basis for the reservation of the name in terms of Section 11(2)(a)(i) and (iii) of the Act. In the circumstances, it cannot be expected of the Tribunal to speculate about these issues.

 

[5]                 It can also be noted that the Applicant’s application has also not been made in terms of Section 160 of the Act and Regulation 153 and in the circumstances it is unclear exactly which section is applicable and why the Applicant believes it has a right in terms of the Act to do so. Note that Regulation 142 (3) clearly states that the section of the Companies Act on which the application is made, must (my emphasis) be indicated.

 

This is clearly a peremptory provision and the Companies Tribunal cannot mero motu condone non-compliance; and the principles of substantial compliance as set out in section 6 (9) and (10) do not apply especially as section 160 not been mentioned despite the mention of Section 11 (2) nor is there a proper justification for the application based on the relevant subsections mentioned in the CTR form 142.

 

ORDER:

 

The application for an order as requested is dismissed with no order as to costs.

 

k.y. tootla (electronically signed)

 

KHATIJA TOOTLA

Member of the Companies Tribunal

2 November 2014

---