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IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

 

(“The Tribunal”)

 

CASE NO: CTR 013Feb2014

 

In an Application in terms of an unknown Section of the Companies Act 71 of 2008 (“the Act”) for a determination whether the refusal of the reservation by CIPC of the name NEW LIFE WORHIP CENTRE as Company name in favour of the Applicant is justified.

 

 

In the matter between:

 

NEW LIFE WORSHIP CENTRE                                                       THE APPLICANT

 

Coram: Khatija Tootla

 

Decision handed down on 27 June 2014

 

 

DECISION

 

 

INTRODUCTION:

 

[1]     The Applicant is NEW LIFE WORSHIP CENTRE (NEW), a Non-Profit organisation, NPO no: 071778, presumably operating from Soshanguve (no street address) as a church.

 

[2]     The First Respondent ought to have been the Commissioner of Companies and Intellectual Property Commission (CIPC) but the Applicant has not deemed it fit to join the Commissioner as a Respondent; and neither has the Applicant deemed it fit to join the CENTURION NEW LIFE WORSHIP CENTRE (CNLW) as a second Respondent when applying for relief for a default order.

 

ISSUE AND BACKGROUND:

 

[3]     The Applicant has not mentioned in terms of which section of the Act it applies in the CTR 142 form and simply states that its application on CTR form 145 is in terms of Regulation 153. No mention is made whatsoever of the specific section in terms of which it states that the name reservation of CENTURION NEW LIFE WORSHIP CENTRE is being objected to. It can be noted that the document has not been served on CENTURION NEW LIFE WORSHIP CENTRE and in effect this flouts all the rules of natural justice. Each opposing party is to be given the opportunity to state their side of the case as it affects their rights and the Applicant has not seen it fit to permit the other party to state its case. It seems that the application was served by Rev Malamb on 14 March 2014 on the email of one Gaba of the Department of Trade and Industry. Note that the Applicant does not point out in terms of which section or sections of the Act the relief is claimed.

 

[4]     Furthermore, the Applicant has simply attached its supporting affidavit to the CTR form 145; but has not made its application on Notice of Motion nor has it explained in the affidavit on what basis the default order is being requested (save to state that it has used its name for 5 years); on whom the documents were served and in which capacity and as to when the time limits expired. The Applicant has also not attached a resolution or Power of Attorney from the Applicant church (NPO) authorising Rev Malamb to make the application and hence the application is also defective in this respect.

 

[5]     Despite this, the Applicant is requesting the Tribunal to make an order that its name be reserved as its company name as it has been using this name for 5 years but does not provide any information as to when the CENTURION NEW LIFE WORSHIP CENTRE was registered as a company, its registration details nor has it served the papers on the latter.

 

[6]      It is clearly evident that CIPC confirmed that the name ‘CENTURION NEW LIFE WORHIP CENTRE “has been registered/reserved in favour of the latter and that the application to reserve a name for the Applicant has been refused as per letter from CIPC on 25 February 2014.

 

[7]     It seems that the Applicant is claiming that the latter’s name is in contravention of the Applicant’s NPO name but has not justified this in any way save to claim that it has been using the name for 5 years.

 

[8]     In any event, the Applicant’s application has not been made in terms of the Act 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.

 

EVALUATION:

 

[9]     There is no indication as to when the CNLWC came into existence and whether it was registered prior to the establishment of the Applicant and the use of the Applicant’s name or not.

 

[10] The Applicant has not filed a proper application of objection in terms of Section 11 of the Act nor has it applied the law in terms Section 12. A name determination has to be made in terms of Section 160 and this is not evident from the papers either.

 

[11]  Although the applicant has filed an objection to the name of CENTURION LIFE WORSHIP CENTRE as stated above, it has not as prescribed by regulation 142 (1) (a) mentioned the sections of the law and the specific regulations in terms of which it has applied, wherein lies the real problem. The only mention made is of Regulation 153 on the CTR form 145.

 

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 no section has been quoted nor is there a proper justification for the application.

 

[12] Regulation 142 (3) (a) requires that the application must “…indicate the basis of the application, stating the section of the Act or these regulations in terms of which the Application is made.” The Applicant does not comply with this basic requirement, as form CTR 142 does not provide (nor does the affidavit) that the name “offends against the provisions of sections 11 (2) or any other section of the Companies Act”.

 

APPLICABLE LAW:

 

[13] Regulation 142 provides as follows:

 

“(2) The applicant must serve a copy of the application and affidavit on each respondent named in the application, within 5 business days after filing it.”

 

The copy of the application was, however, apparently only served on The Department of Trade and Industry and not on the Commissioner of CIPC and it has not been served on CNWC as mentioned in the CoR 9.1 notice.

 

[14] In terms of regulation 153 (1) read with regulation 143 (1), the first respondent has 20 days to respond, failing which the Applicant is entitled to apply for a default order as provided for in regulation 153 (1).

 

[15] The jurisdiction of the Companies Tribunal is stated in section 160 of the Act and is as follows:

 

“(1) A person to whom a notice is delivered in terms of this Act with respect to an application for reservation of a name, registration of a defensive name, application to transfer the reservation of a name or the registration of a defensive name, or the registration of a company’s name, or any other person with an interest in the name of a company, may apply to the Companies Tribunal in the prescribed manner and form for a determination whether the name, or the reservation, registration or use of the name, or the transfer of any such reservation or registration of a name, satisfies the requirements of this Act.

 

(2)    An application in terms of subsection (1) may be made— (a) within three months after the date of a notice contemplated in subsection (1), if the applicant received such a notice; or (b) on good cause shown at any time after the date of the reservation or registration of the name that is the subject of the application, in any other case.

 

(3)    After considering an application made in terms of subsection (1), and any submissions by the applicant and any other person with an interest in the name or proposed name that is the subject of the application, the Companies Tribunal— (a) must make a determination whether that name, or the reservation, registration or use of the name, or the transfer of the reservation or registration of the name, satisfies the requirements of this Act; and (b) may make an administrative order directing— (i) the Commission to— (aa) reserve a contested name, or register a particular defensive name that had been contested, for the applicant; (bb) register a name or amended name that had been contested as the name of a company; (cc) cancel the reservation of a name, or the registration of a defensive name; or (dd) transfer, or cancel the transfer of, the reservation of a name, or the registration of a defensive name; or (ii) a company to choose a new name, and to file a notice of an amendment to its Memorandum of Incorporation, within a period and on any conditions that the Tribunal considers just, equitable and expedient in the circumstances, including a condition exempting the company from the requirement to pay the prescribed fee for filing the notice of amendment contemplated in this paragraph.”

 

[16] It can be noted that although the Applicant did make an application within the three month period as indicated by Section 160 (2), the Applicant’s application is defective in that it has not mentioned that the application is being made in terms of Section 160 anywhere in its papers nor has the Applicant justified its Application in respect of that section.

 

FINDINGS:

 

[17] In view of the fact that the Applicant has not complied with Reg. 142 (3) (a) which is peremptory provision, the Tribunal is of the view that it cannot entertain the matter any further with regard to the actual merits.

 

[18] A cursory reading of Section 160 of the Act indicates that the original relief applied for by the Applicant in the CTR 142 form is not possible against the Commissioner of CIPC as there are various glaring and critical defects in the applicant’s case as pointed out above, as well various deficiencies in the formalities in respect of its papers.

 

ORDER:

 

[19] The application for an order in terms of Regulation 153 to the Companies Act is dismissed with no order as to costs.

 

 

k. tootla (electronically signed)

 

KHATIJA TOOTLA

 

Member of the Companies Tribunal 27 June 2014

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