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COMPANIES TRIBUNAL REPUBLIC OF SOUTH AFRICA

 

Case Number CT004APR2014

 

In the Application of

 

BERNARD JACOBS                                                            Applicant

AND

 

COMPANIES AND INTELLECTUAL PROPERTY

COMMISSION                                                                      First Respondent

 

ASTRID LUDIN; COMMISSIONER                                     Second Respondent

 

RORY VOLLER; DEPUTY COMMISSIONER                     Third Respondent

 

LANA VAN ZYL; SENIOR MANAGER ENFORCEMENT   Fourth Respondent

 

NOMATHEMBA DUMILE RUBUSHE                                  Fifth Respondent

 

 

Tribunal Coram: Lucia Glass, Piet Delport and Francis Maake Kganyago

 

 

DECISION

 

 

INTRODUCTION

 

1.       The Applicant  was referred to the Companies Tribunal, (Tribunal)  by the COMPANIES AND INTELLECTUAL PROPERTY COMMISSION (CIPC), represented by the Second to Fifth respondents (Respondents) to request the Tribunal to review the Respondents’ investigation process and findings in that the Respondents had failed to properly investigate a complaint and further that the Respondents had irregularly, condoned contraventions of the Companies Act 71 of 2008 (the Act).

 

PRELIMINARY ISSUES

 

2.       The Tribunal's first port of call is to consider whether it has the powers (jurisdiction) to review the CIPC investigation process and findings, before it can contemplate the evidence in respect of whether Respondents had failed to properly investigate a complaint.

 

FACTS

 

3.       The Applicant filed a 687 page document with the Tribunal in order to prove his case and appeared before us, without legal counsel.

 

4.       In a nutshell the Applicant had issues with a certain Business Rescue Practitioner one Bernard Jongen (BRP) who was never a party to this Application.

 

5.       The Applicant lodged a complaint with CIPC in respect of the BRP.

 

6.       Respondents) had investigated the BRP and did not make a compliance order against the BRP.

 

7.       The Applicant now requires the Tribunal to review the Respondents investigation and findings.

 

THE APPLICABLE LAW

 

8.       "Part D of the Act Complaints to Commission or Panel Initiating a complaint

 

168.(1) Any person may file a complaint in writing—(emphasis added)

(a)     with the Panel in respect of a matter contemplated in Part B or C of Chapter 5, or in the Takeover Regulations; or

(b)     with the Commission in respect of any provision of this Act (emphasis added) not referred to in paragraph (a), alleging that a person has acted in a manner inconsistent with this Act, or that the complainant’s rights under this Act, or under a company’s Memorandum of Incorporation or rules, have been infringed.

 

Investigation by Commission or Panel

169.(1) Upon initiating or receiving a complaint, or receiving a direction from the Minister, in terms of this Act, the Commission or Panel, as the case may be, may—

(b) if they think it expedient as a means of resolving the matter, refer the complainant to the Companies Tribunal, or to an accredited entity, as defined in section 166(3), with a recommendation that the complainant seek to resolve the matter with the assistance of that agency; or (emphasis added)

 

Outcome of investigation 170.

(2) The Commission or Panel, as the case may be—

(a)     in its sole discretion, may publish a report contemplated in subsection (1); and

(b)     irrespective whether it publishes such a report, must deliver a copy of the

 report to—

(i)      the complainant, (emphasis added) or a regulatory authority that requested the initiation of the complaint;

 

Issuance of compliance notices 171.

(1)    Subject to subsection (3), the Commission, or the Executive Director of the Panel, may issue a compliance notice in the prescribed form to any person whom the Commission or Executive Director, as the case may be, on reasonable grounds believes—

(a)    has contravened this Act; or

(b)    assented to, was implicated in, or directly or indirectly benefited from, a contravention of this Act, unless the alleged contravention could otherwise be addressed in terms of this Act by an application to a court or to the Companies Tribunal. (emphasis added)

…

(5) A compliance notice issued in terms of this section, or any part of it, remains in force until—

(a)    it is set aside by—

(i)      the Companies Tribunal (emphasis added), or a court upon a review of the notice, in the case of a notice issued by the Commission; or

…

 

Objection to notices 172.

(1)    Any person issued with a compliance notice in terms of section 171 may apply to the Companies Tribunal (emphasis added) in the case of a notice issued by the Commission

….

(2)    After considering any representations by the applicant and any other relevant information, the Companies Tribunal, (emphasis added)   the Takeover Special Committee, or a court may confirm, modify or cancel all or part of a compliance notice.

(3)    If the Companies Tribunal, the Takeover Special Committee or a court confirms or modifies all or part of a notice, the applicant must comply with that notice as confirmed or modified, within the time period specified in it, subject to subsection (4). (emphasis added)

(4)    A decision by the Companies Tribunal or the Takeover Special Committee in terms of this section is binding, subject to any right of review or appeal by a court."

 

APPLICATION OF THE LAW TO THE FACTS

 

9.       The Tribunal is to decide, whether in terms of Section 168 to 172, as quoted above, it has the jurisdiction to review the Respondents' investigation process and findings and that the Respondents had failed to properly investigate a complaint and further that the Respondents had irregularly, condoned contraventions of the Act.

 

10.     In terms of Section 171 of the Act, and only upon an issuance of compliance notice, by the Commission, that the alleged contravention can be addressed in terms of this Act by an application to the Companies Tribunal.

 

11.    The CIPC did not issue a compliance notice in terms of Section 171 of the Act.

 

12.    Any remedies against the CIPC can, in terms of Section 172 of the Act, only be brought be a person against whom a compliance notice has been issued by the CIPC.

 

13.    The Tribunal therefore does not have jurisdiction in this matter in terms of Section 172 of the Act.

 

14.    The Applicant has failed to bring this application in terms of any other of the Sections of the Act and thus the Tribunal has no jurisdiction to adjudicate on the application brought by the Applicant.

 

FINDINGS

 

15.    After considering all the facts, and the Sections of the Act, I conclude that the Tribunal does not have jurisdiction in terms of the Act to adjudicate upon this matter.

 

ORDER

 

I accordingly do not grant the relief sought by the Applicant.

 

 

LUCIA GLASS

MEMBER OF THE COMPANIES TRIBUNAL

 

Concurred by P DELPORT

MEMBER OF THE COMPANIES TRIBUNAL

 

Concurred by F M KGANYAGO

MEMBERS OF THE COMPANIES TRIBUNAL

 

Dated 21st August 2014.

 

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