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IN THE COMPANIES TRIBUNAL: REPUBLIC OF SOUTH AFRICA

 

Case no: CT 014/11 2013 8/1/4/2

 

In the matter of:

 

Hamon J & C Engineering (Pty) Limited

Registration no. 2010/002810/07                                          Ex Parte

 

 

Application in terms of Section 160 (1) r/w Section 12, r/w Regulation 13, 142 and 153 of the Companies Act 71 of 2008 as amended.

 

1.       The Party / ies

 

The Applicant is Hamon J & C Engineering (Pty) Limited a company registered and incorporated in terms of the Company Laws of the Republic of South Africa bearing registration number 2010/002810/07, no address of business is given. (the Applicant) There is no clear indication in the papers before me as to who the Respondent is, if any; in fact, form CTR 142 under the heading “Name, registration number and address of Respondent (s). Use additional sheet if required” the form reflects “unknown”

 

2.       The Application

 

This is an application lodged by a female manager at Sim & Botsi Attorneys on behalf of the Applicant; being duly authorised to do so.

 

The Application is for Relief on form CTR 142 filed with the Companies Tribunal on the 26^th November 2013; and under the heading “CONCERNING” reflects “refusal to transfer name/ refusal to reserve name 110692827 (CIPC Ref) -11/9/2013 Objection to Reservation- 1106040930 (CIPC Ref-14/8/2013.”

 

Further on the form under the heading “The Applicant requests that the Tribunal grant the following relief” it reflects “Granting of transfer/reservation of name to Applicant”.

 

I will deal with the two aspects of the Application as I understand it on the papers before me.

 

3.       The first issue is:-

 

Applicant’s submission as contained in the affidavit of the person authorised to lodge the application on its behalf is that:-

 

1)       On or about February 2013, an instruction was given for the transfer of a defensively registered name of a company being J & C Engineering or J and C Engineering to Hamon J & C Engineering (Pty) Limited, which was duly done by submitting form CoR 11.1 dated 21 February 2013 and submitted to the CIPC.

 

i)        I need to pause here to address the issue of this application. The form CoR 11.1 is a prescribed form of the Companies and Intellectual Property Commission commonly known as the CIPC, prescribed in terms of the Companies Regulations Annexure 1; it is used in applications to transfer reserved names or registration of defensive names, to another person pursuant to Regulation 11 and section 12(5) to

(10) of the Act. .

ii)      There is no indication on the papers before me that the Applicant had reserved the name it sought to transfer by form CoR 11.1 which it should have done on form CoR 9.1 in terms of Regulation 9 and Section 12(1) of the Act;

 

2)       The Applicant submits that there is an existing entity known as J & C Engineering CC, a closed corporation with registration number 1989/041081/23 whose members are also shareholders of Hamon J & C Engineering ( Pty) Ltd, the Applicant in this matter.

 

3)       According to the Applicant, a resolution was passed in a meeting of its Directors to transfer the name of the CC, J & C Engineering to the name of the Applicant.

 

4)       The reason given by the Applicant for seeking this “transfer” is that prior to the Applicant being registered, its business was operated under the name and style J & C Engineering CC. subsequently , a joint venture was formed with another entity known as Hamon South Africa (Pty) Ltd. Later on however, the joint venture ceased to operate.

 

5)       Upon the dissolution of the joint venture, the Applicant which is currently known as Hamon J & C Engineering sought to revert to its prior name of J &C Engineering, albeit, as a company and not as a CC. It is for this reason that Applicant sought, without success to transfer its name from a CC to the Company as reflected in Annexure “SS 2” and “3”;

 

6)       When the request for transfer failed, the Applicant submits that it applied for a name change ( affidavit paragraph f ) by submitting Annexure “SS 4” which is an application for transfer of “reserved name” form 11.1 from the CC to the Applicant,

 

7)       Needless to say, the CIPC responded on 8^th May 2013 to say the application was not properly lodged. The CIPC at this stage recommended that the Applicant should lodge a Notice of Amendment to the Memorandum of Incorporation in terms of Section 16(1) and (2) r/w 15 by filing form CoR 15.2

 

8)       This advice given by the CIPC was correct in that the dissolution of the joint venture and the resolution by the company to revert to its original name both constituted an amendment to its Memorandum of Incorporation.

 

9)       If the Applicant had anticipated that it would encounter difficulties with this route, they could have applied for a Conversion of the CC to a company in terms of Schedule 2 to the Act r/w Regulation 18.

 

10)   On this issue, the CIPC was correct in its electronic mails referred hereto as “SS 6”.. The Applicant sought to lodge an inappropriate application, instead of amending its Memorandum of Incorporation or Converting the CC to a Company; registered names cannot be exchanged and interchanged between entities registered in terms of different Acts, being the Companies Act and Close Corporations Act 69 of 1984.

 

4.       I now turn my attention to the second issue raised by Applicant in its papers.

 

1)      The Applicant submits that in or around September 2013, it lodged a CoR 9.1, application to reserve a company name; this application, in terms of the Act Section 12(1) and Regulation 9. The CIPC will reserve such name if it does not fall foul of Section 11 as amplified in Section 12(2), (3) and (6).

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2)      Section 12(9) provides that ‘any person may apply on the prescribed form and on payment of the prescribed fee to the Commission to register any name as a defensive name for a period of two years; in respect of which he or she has furnished proof, to the satisfaction of the Commission, that he or she has a direct and material interest’. The Applicant did not use this Section.

 

3)      The Applicant submits that it received a response enclosed in its papers marked Annexure “SS 8” advising it that there were three comparative names already registered and that the third comparative name was in respect of a name reservation that had been granted on the 14 August 2013. A copy of that name reservation is annexed to Applicant’s papers as Annexure “SS 9”

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4)      The Applicant submits that it had submitted its application for name reservation in September (affidavit paragraph m), which application was not successful as advised by CIPC in the response dated 11September 2013, advising of comparative names.

 

5)      The Applicant is aggrieved, it submits, in that the third comparative name it was informed of by CIPC, belonged to Business Zone of 13 Gordon Street, Parrow 1500, an entity that had applied for name reservation on the 7 August 2013 and the name was reserved on 14 August 2013.

 

6)      A further reason, why the Applicant is aggrieved is that the CIPC’s response to this entity, as reflected in the response marked annexure ”SS 9” , was that there were comparable names as listed in the response, however, despite this finding, the name reservation was granted.

 

7)      The Applicant seeks an administrative order by the Tribunal in terms of Section 160 (1) and (3) (b) (i) (cc) that the Commission cancel the reservation of the name; it makes the application as a person with an interest in the name that is the subject of the reservation.

 

5.       Discussion and Finding’s

 

1)      I must first mention that this is indeed one of those matters where the Applicant did not pay attention to ensuring that its application is clear and that its papers seek to make a clear case on its submissions as well as the relief sought.

 

2)      The CTR 142 form does not comply with Regulation 142 (1), (2) and (3) of the Companies Regulations, 2011

 

3)      There is a form CTR 145 purporting to be an application or Notice of Motion for a Default Order, however, this does not fulfil the requirement that it should satisfy that the application was adequately served, no proof of service on the Commission is attached. Service is prescribed in the Act by Section 220.

 

4)      The application does not reflect who the Respondent (s) is. The form CTR 142 merely says “unknown”; this is also non- compliant with the Regulations.

 

5)      The Applicant’s bid to transfer the CC name to the Company name is bad in law and not properly researched. The Act and Regulations must be read properly by the Legal representative and an appropriate application must then be lodged with the Commission.

 

6)      Regarding the Application for cancellation of the reservation of name ( which I had to read into the papers) :-

 

I am satisfied that the Applicant has made out a case as contemplated by section 160 (3) (b) (cc) of the Act.

 

7)      The obvious reasons for the finding is that:-

 

a)   The Applicant is an interested person in the name which is the subject matter of the name reservation dispute;

b)   The Commission, in reserving the name, did so contrary to Sections 11(2) (a) (i); (b)

(c) and 12 (2), (3) r/w Regulations 9.

 

Order

 

6.       After consideration of the application by the Applicant as well as accompanying submissions made, The Tribunal makes an Administrative Order as follows:

 

a)       The reservation of the name does not satisfy the requirements of the Companies Act 71 of 2008 as amended, in particular section 11 and 12;

b)      The Tribunal directs the Commission cancel the reservation of the name J&C Engineering reserved for the entity Business Zone per COR 9.4 DATED 14 August 2013 to 13 February 2014 under reservation number 110640930.

c)       A copy of this Administrative Order must be served on the Commission.

d)      Any party served with this Order must be informed that it may, within 20 days of receiving this order of the Tribunal apply to a Court for a review of the Order.

 

 

Tribunal Member

 

Dated 11^th April 2014

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