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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA, PRETORIA

 

CASE NO: CTR 003 NOV2013

 

In the matter between:

 

CFA INSTITUTE                                                         Applicant

 

and

 

CHARTERED INSTITUTE OF FINANCIAL

 

AND INVESTMENT ANALYSTS (PTY)LTD               Respondent

 

Coram: Kganyago M.F

 

Decision handed down on the 17^th APRIL 2014

 

 

DECISION

 

 

[1]     The applicant is applying for a default order in this matter. The applicant has instituted proceedings against the respondent wherein they are seeking a relief that the respondent be ordered to amend its name to one that does not contain the elements “Chartered, Financial, Analysts and Institution,” and to file a new Memorandum of Incorporation to that effect.

 

[2]     The applicant has attempted to effect service of their application through the sheriff. The return of the sheriff was that of “non service” as the sheriff was informed by one Mr Esther Pukudu that the respondent was unknown at the given address.

 

[3]     Despite the return of non service, the applicant is applying for a default order alleging that the respondent did not respond to the application within the stipulated 20 business days.

 

[4   Rule 4(1)(a)(v) of the Uniform Rules of the High court reads as follows:-

 

“(a) Service of any process of the court directed to the sheriff and subject to the provisions of paragraph (Aa) any document initiating application proceedings shall be effected by the sheriff in one or other of the following manners:

(v) in case of a corporation or company, be delivered a copy to a responsible employee thereof at its registered office or its principal place of business within the court’s jurisdiction, or if there be no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law.”

 

[5]     Section 220 of the Companies Act 71 of 2008 (“the Act”) reads as follows:-

 

“Unless otherwise provided in this Act, a notice, order or other documents that in terms of this Act, must be served on a person, will have been properly served when it has been either-

 

(a)    delivered to that person; or

 

(b)    sent by registered mail to that persons last known address.”

 

[6]     The wording of section 220 of the Act is clear, the notice must be delivered to the person whom it is intended. In the present case the sheriff did not serve the application to the intended person and the sheriff return is that of “non service”, meaning there was no return of service at all. In my view a default order would not be granted based on a return of non service.

 

[7]     The applicant chose to effect service through the sheriff. In terms of rule 4(1)(a)(v) the document was supposed to be delivered to a responsible employee or by affixing a copy to the main door of such office or business, or in any manner provided by law. In the present case no service was effected at all.

 

[8]     Therefore, under the circumstances, I am of the view that a default order should not be granted based on a return of non service.

 

ORDER

 

[9]     The following order is made:-

 

1.     The applicant’s application for a default order is refused.

 

 

Dated at POLOKWANE on the 17^th day of APRIL 2014.

 

 

M.F KGANYAGO

MEMBER OF THE COMPANIES TRIBUNAL

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