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IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

CASE NO: CT007DEC2017

In the matter between:                                                                

SOUNDWORKS CC                                                                                              Applicant

(Registration Number: CK1990 / 026834 / 23)

and

SOUNDWORKS HERMANUS (PTY) LTD                                                        Respondent

(Registration Number: 2016 / 209645 / 07)

 

Issue(s) for determination: This is an objection to the registration of the company name Soundworks Hermanus (Pty) Ltd in terms of sections 11 and 160 of the Companies Act, 2008 (Act No. 71 of 2008) read with regulations 13 and 142 of the Companies Regulations, 2011.

Coram:                                                          Lindelani Daniel Sikhitha

Date of handing down of decision:            21 May 2018

DECISION (Reasons and Order)

INTRODUCTION

[1] The Applicant in this matter is Soundworks CC, with Registration Number: CK1990 / 209645 / 23 which is a Close Corporation duly registered as such in accordance with the laws of the Republic of South Africa.  The Applicant’s registered address is situated at 3 Howard Studios, Sheldon Way, Pinelands, Western Cape, Republic of South Africa, 7402.[1]

[2] The Respondent in this matter is Soundworks Hermanus (Pty) Limited with Registration Number: 2016 / 209645 / 07 which is a company duly incorporated and registered as such in accordance with the company laws of the Republic of South Africa.  The Respondent’s registered address is situated at Bosko Centre, Hermanus, Fairways Avenue, Western Cape Province, Republic of South Africa, 7200.[2]

[3] This is an Application in terms of which the Applicant objects to the registration of the company name Soundworks Hermanus in terms of sections 11 and 160(2)(b) of the Companies Act, 2008 (Act No. 71 of 2008) (“the Act”) read together with Regulations 13 and 142 of the Companies Regulations, 2011 (“the Regulations”).  In short, it is alleged by the Applicant that the Respondent’s company name is contrary to the provisions of section 11(2)(a) and section 11(2)(b) of the Act as it amounts to a name that is confusingly similar to the current name of the Applicant and further that the Respondent could be seen as a branch of the Applicant.  The Applicant is therefore relying on section 11(2)(a)(i), section 11(2)(b)(i) and section 11(2)(c)(i) of the Act.

[4] In this Application, the Applicant is seeking a relief to the effect that the Respondent must change the name Soundworks Hermanus and further that it should cease using the word “Soundworks” in its company name.[3]

[5] The current Application seems to have been first delivered to the Companies Tribunal through email communication from the Applicant’s Accountants, being Dixie & Visser Professional Accountants (SA) on 07 November 2017.

[6] On 07 November 2017, the Companies Tribunal, through Mr. Mandla Zibi, who is the Senior Administrator, informed the Applicant’s Accountants that its Application is incomplete and he requested that the Applicant should furnish the Companies Tribunal with the following documents:

6.1         An extract of records from the Companies and Intellectual Property Commission (“the CIPC”) for Soundworks Hermans (Pty) Ltd with Registration Number: 2016 / 209645 / 07; and

6.2         A filing Sheet containing contact details for all parties cited on the Application.

[7] It is common cause that the Applicant did comply with the aforementioned directives from the Companies Tribunal and the current Application was satisfactorily filed through email communication from the Applicant’s Accountants on the 07^th day of December 2017.  The Companies Tribunal did allocate the case number to the current Application and thereafter issue out an acknowledgement letter dated 07 December 2017.[4]

BACKGROUND AND PROCEDURAL COMPLIANCE MATTERS

[8] In terms of Regulation 142(1) of the Companies Regulations, 2011 (“the Regulations”), any person (an applicant) may apply to the Companies Tribunal for an order in respect of any matter contemplated in the Act or the Regulations by completing and filing with the Companies Tribunal’s recording officer:

8.1         an Application in Form CTR 142; and

8.2         a supporting affidavit setting out the facts on which the application is based.

[9] The current Application together with two Supporting Affidavits deposed to by Tanya Jacquiline Gore and Joseph Thomas Gore is apparently being made in terms of sections 11 and 160 of the Act read together with Regulations 13 and 142 of the Regulations.

[10] Contrary to what is stipulated in the Regulations, the Applicant did not refer to any section of the Act or Regulation of the Regulations in terms of which the current Application is being made.  Instead, the Applicant only attached extracts of what appears to be section 11 of the Act on its Application.  Upon careful look at the extract attached to the current Application, it is clear that the extract is not referring to the correct provisions of section 11(2) of the Act.  I will deal with this issue when I deal with the procedural issues in my determination.

[11] As already stated in paragraph 7 above, the current Application was only properly filed with the Companies Tribunal on the 07^th day of December 2017.[5]  For all intents and purposes, any reference to the date of filing of the Application must be considered to mean the 07^th day of December 2017.  I am therefore satisfied that the Applicant did comply with the directives issued by the Companies Tribunal and therefore the current Application was properly filed with the Companies Tribunal on the filing date and therefore I should proceed to check the next steps of compliance.

[12] In terms of Regulation 142(2) of the Regulations, the Applicant is required to serve a copy of the Application together with the Supporting Affidavits and any attachment thereto on each respondent cited in the Application, within 5 business days calculated from the filing date.

[13] It appears from the papers placed before me that the current Application was indeed served upon the Respondent on the 13^th day of December 2017 at 16h00 at Bosko Center, Fairways Avenue, Hermanus (“the service address”).  There is no details regarding the person who received the documents on behalf of the Respondent.  I can only deduce from the attached Waybill that the person who received the documents did indeed sign the Waybill.[6]

[14] Be that as it may, I am satisfied that the service address is the same as the registered address of the Respondent as per the Respondent’s Disclosure Certificate.  It is therefore clear that service of the current Application upon the Respondent was effected within a period of 5 business days calculated from the filing date as prescribed by Regulation 142(2) of the Regulations.  I am therefore satisfied that the Application in this matter was properly served upon the Respondent in the manner that had been fully outlined on the Waybill and in accordance with Regulation 142(2) of the Regulations.

[15] In terms of Regulation 142(3) of the Regulations, the current Application is required, at the minimum, to contain information which must:

15.1      indicate the basis of the Application, stating the section of the Act or the Regulations in terms of which the Application is made; and

15.2      depending on the context-

15.2.1   set out the Commission’s decision that is being appealed or reviewed;

15.2.2   set out the decision of the Companies Tribunal that the Applicant seeks to have varied or rescinded;

15.2.3   set out the Regulation in respect of which the Applicant seeks condonation; or

15.3      indicate the order sought; and

15.4      state the name and address of each person in respect of whom an order is sought.

[16] The Supporting Affidavits placed before me are substantively lacking with regard to the minimum details prescribed by Regulation 142(1)(b) and Regulation 142(3) of the Regulations.  The minimum details prescribed by Regulation 142(1)(b) and Regulation 142(3) of the Regulations are very crucial for purposes of my determination of the issues which are referred for adjudication by the Companies Tribunal in this matter.  The current Application like all other applications should at least provide the minimum details as prescribed in terms of the aforesaid Regulations and failure to provide such details will, in my view, render any such application to be defective.

[17] Based on what I have stated above, I am therefore not satisfied that the current Application is in substantial compliance with Regulation 142(1)(b) and Regulation 142(3) of the Regulations.  I therefore find that the current Application is substantively lacking with regard to the minimum details as prescribed in terms of Regulation 142(1)(b) and Regulation 142(3) Regulations.  I will return to this issue at a later stage in my determination.

[18] Be that as it may, in terms of Regulation 143(1) of the Regulations, a respondent who wishes to oppose the application must serve a copy of answer on the initiating party and file the answer with proof of service thereof with the Companies Tribunal within twenty (20) business days after being served with an application that has been filed with the Companies Tribunal.[7]

[19] It follows therefore that the Respondent was required to serve a copy of its answer on the Applicant and file its answer together with proof of service on the Applicant with the Companies Tribunal within twenty (20) business days in terms of Regulation 143(1) of the Regulations.

[20] Upon proper calculation of the time frames in terms of Regulations 143(1) of the Regulations the Respondent was required to serve on the Applicant and to file with the Companies Tribunal a copy of its answer to the current Application together with proof of service on the Applicant on or before the 15^th day of January 2018.

[21] It is clear from the documents placed before me in this matter that as at the date of the filing of the Application for the Default Order in this matter, the Respondent has still not served on the Applicant and filed with the Companies Tribunal a copy of its answer together with proof of service on the Applicant as prescribed by Regulation 143(1) of the Regulations.

[22] As a result of the Respondent’s failure to serve on the Applicant and file with the Companies Tribunal a copy of its answer together with proof of service on the Applicant with the Companies Tribunal, the Applicant was therefore entitled to file the Application for Default Order, in terms of Regulation 153(1) of the Regulations, with the Companies Tribunal. 

[23] The Companies Tribunal is therefore enjoined to consider the Application for Default Order in line with the provisions of Regulation 153(2) of the Regulations.  It is important that I should make reference to the provisions of Regulation 153(1) and (2) of the Regulations which gives to the Companies Tribunal the powers to entertain applications for default orders.  The relevant provisions of Regulation 153(1) and (2) of the Regulations read as follows:

“(1)        If a person served with an initiating document has not filed a response within the prescribed period, the initiating party may apply to have the order, as applied for, issued against that person by the Tribunal.

(2)         On an application in terms of sub-regulation (1), the Tribunal may make an appropriate order–

(a)          after it has heard any required evidence concerning the motion; and

(b)          if it is satisfied that the notice or application was adequately served.”

[24] The Applicant did indeed proceed to file its Application for Default Order (Form CTR 145) in terms of Regulation 153(1) of the Regulations and such application was filed with the Companies Tribunal on the 18^th day of April 2018.

[25] In terms of the Affidavits in support of the Application for Default Order deposed to by Joseph Thomas Gore and Tanya Jacquiline Gore, the Applicant makes the following allegations which are considered to be relevant for purposes of determination of the current Application:

25.1      That the deponents are members of the Applicant;

25.2      That the Respondent is trading under a similar name to that of the Applicant;

25.3      That the Applicant is objecting to the name of the Respondent as the Respondent could be seen to be trading as a branch of the Applicant; and

25.4      That the Respondent should be ordered to change its name and to cease using the word “Soundworks” in its name.

[26] Upon careful consideration of the Application for Default Order that had been placed before me, I am satisfied that it had been filed with the Companies Tribunal in compliance with the provisions of Regulation 153(1) of the Regulations as outlined above.  I am therefore bound to consider the current Application for Default Order.

THE RELEVANT PROVISIONS OF THE ACT

[27] The Companies Tribunal is a creature of the Act and therefore its jurisdiction to deal with the current Application is to be found through conducting a thorough examination of the papers placed before me in this matter.  Such a process also requires me to examine the relevant provisions of the Act to determine the scope and extent of the powers assigned to the Companies Tribunal to adjudicate or determine the current Application.

[28] In terms of the Supporting Affidavits placed before me, the Applicant is objecting to the registration of the company name of the Respondent by the CIPC, being Soundworks Hermanus (Pty) Ltd.  The Applicant did not indicate the section(s) of the Act or the Regulations in terms of which the current Applicant is being made.

[29] However, based on my reading and understanding of the papers placed before me in this matter, the Applicant is making such an objection in terms of sections 11(2)(a)(i), 11(2)(b)(i), 11(2)(c)(i) and 160 of the Act read with Regulations 13 and 142 of the Regulations.  I should however point out that save for having attached an extract containing wrong provisions of section 11, the Applicant did not refer to the aforesaid sections of the Act and Regulations in its Supporting Affidavits and papers.

[30] Be that as it may, it is imperative that I should deal with each of the provisions of the Act and Regulations that are referred to by the Applicant.  However, where necessary I will make reference to the provisions of the Act and the Regulations which I consider to be relevant for purposes of my reasons and decision on the application.

[31] My point of departure in this exercise will be to look at the provisions of section 11(2) of the Act.  The relevant parts of section 11(2)(a), (b) and (c) of the Act reads as follows:

“(2)    The name of a company must-

(a)     not be the same as-

(i)        the name of another company, domesticated company, registered external company, close corporation or co-operative;

(ii)       a name registered for the use of a person, other than the company itself or a person controlling the company, as a defensive name in terms of section 12(9), or as a business name in terms of the Business Names Act, 1960 (Act No. 27 of 1960), unless the registered user of that defensive name or business name has executed the necessary documents to transfer the registration in favour of the company;

(iii)      a registered trade mark belonging to a person other than the company, or a mark in respect of which an application has been filed in the Republic for registration as a trade mark or a well-known trademark as contemplated in section 35 of the Trade Marks Act, 1993 (Act No. 194 of 1993), unless the registered owner of that mark has consented in writing to the use of the mark as the name of the company; or

(iv)      a mark, word or expression the use of which is restricted or protected in terms of the Merchandise Marks Act, 1941 (Act No. 17 of 1941), except to the extent permitted by or in terms of that Act;

(b)     not be confusingly similar to a name, trade mark, mark, word or expression contemplated in paragraph (a) unless -

(i)         in the case of names referred to in paragraph (a)(i), each company bearing any such similar name is a member of the same group of companies;

(ii)        in the case of a company name similar to a defensive name or to a business name referred to in paragraph (a)(ii), the company, or a person who controls the company, is the registered owner of that defensive name or business name;

(iii)      in the case of a name similar to a trade mark or mark referred to in paragraph (a)(iii), the company is the registered owner of the business name, trade mark or mark, or is authorised by the registered owner to use it; or

(v)          in the case of a name similar to a mark, word or expression referred to in paragraph (a)(iv), the use of that mark, word or expression by the company is permitted by or in terms of the Merchandise Marks Act, 1941;

(c)         not falsely imply or suggest, or be such as would reasonably mislead a person to believe incorrectly, that the company-

(i)          is part of, or associated with, any other person or entity….”

[Own emphasis added.]

[32] I am also required to look at the provisions of section 160(1) of the Act.  Section 160(1) of the Act grants a right to any party who is interested in the name of the company to bring, amongst others, an application similar to the one brought by the Applicant for determination by the Companies Tribunal.  The relevant parts of section 160(1) of the Act read 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.”  [Own emphasis added.]

[33] Before dealing with the merits and/or demerits of the current Application, it is important that I should quickly deal with some preliminary issues which relates to the form that the current Application should comply with.  In this regard, I am enjoined to first have a look at the provisions of Regulation 13(a) which deals with the form of the applications of this nature.  I am required to engage in this exercise in order to determine if the current Application is indeed in compliance thereto.  The relevant parts of Regulation 13(a) read as follows:

“(a)     A person may apply in Form CTR 142 to the Tribunal in terms of section 160 if the person has received… a Notice of a Potentially Contested Name, in Form CoR 9.6 or a Notice of a Potentially Offensive Name, in Form CoR 9.7, or has an interest in the name of a company as contemplated in section 160(1)….”  [Own emphasis added.]

[34] As already stated, the current Application is contained in Form CTR 142 (Application for Relief) and it is supported by Supporting Affidavits deposed to by members of the Applicant.  I am therefore satisfied that the current Application does comply with Regulation 13(a) of the Regulations as outlined above.

[35] It is also important that I should, as part of this exercise, also look at the provisions of section 160(2) of the Act which reads as follows:

“(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.”  [Own emphasis added.]

[36] Based on the documents placed before me, more particularly the Disclosure Certificate for the Respondent, it is clear that the Respondent was registered on the 20^th day of May 2016.

[37] As I have already pointed out above, the current Application was only properly filed with the Companies Tribunal on the 07^th day of December 2017 (the filing date).  The current Application was served on the Respondent on the 13^th day of December 2017 (“the service date”).  It is common cause that the Applicant did not receive the notice contemplated in section 160(1) of the Act from the CIPC.  Therefore section 160(2)(a) of the Act is not applicable to the current Application.

[38] In terms of section 160(2)(b) of the Act, the Applicant is permitted to file its Application to challenge registration of the name of the Respondent at any time.  In order to have its Application entertained by the Companies Tribunal, the Applicant is however required to show good cause as to why its Application should be entertained by the Companies Tribunal as prescribed by section 160(2)(b) of the Act.

[39] It is important for me to begin the exercise of determining the question as to whether or not the Applicant had succeeded in showing good cause to explain the delay in filing the Application by unpacking the essential requirements of good cause which the Applicant is required to show in terms of the provision of section 160(2)(b) of the Act.  I must therefore proceed to analyze the Applicant’s papers in order to determine whether or not the Applicant had succeeded in showing good cause in order for me to proceed to entertain its Application.

SHOWING OF GOOD CAUSE BY THE APPLICANT IN TERMS OF SECTION 160(2)(b) OF THE ACT

[40] Our courts have had countless opportunity to determine the important factors which should be considered when dealing with the issue of showing good cause in terms of their rules of processes and procedures.  I therefore find such case law to be significant in providing some form of guidance regarding the determination of the issues that are involved in this matter.

[41] In Colyn v Tiger Food Industries, Jones AJA had the following to say regarding the essential requirements of showing “good cause” in relation to an application for rescission of default judgment, which requirements are, in my view and with necessary changes, also relevant to the application before me:

[11]      …The authorities emphasize that it is unwise to give a precise meaning to the term good cause. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait:

‘When dealing with words such as "good cause" and "sufficient cause" in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns' Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352-3). The Court's discretion must be exercised after a proper consideration of all the relevant circumstances.’

With that as the underlying approach the courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiff's claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd, HDS Construction (Pty) Ltd v Wait supra, Chetty v Law Society, Transvaal.).”[8] [Own emphasis added.]

[42] The principles governing the requirements for granting or refusing of condonation applications by courts or tribunals (including the Companies Tribunal) are well established in our law. In terms of these principles the courts or tribunals have a discretion which is to be exercised judicially after taking into account all the relevant facts which have been brought before them by applicants for such condonation.  These facts will differ from one case to the other and what would be reasonable facts in one case might be unreasonable in another case.

[43] Be that as it may, the factors which are important and which the Companies Tribunal is enjoined to take into consideration in the determination of whether or not to grant a condonation application brought before it by an applicant are the following:

43.1      the degree of lateness or non-compliance with the prescribed time frame;

43.2      the explanation for the lateness or  the failure to comply with time frames;

43.3      prospects of success or bona fide defense in the main case;

43.4      the importance of the case;

43.5      the respondent’s interest in the finality of the matter or case brought before the court or tribunal;

43.6      the convenience of the court or tribunal; and

43.7      avoidance of unnecessary delay in the administration of justice.[9]

[44] As Molahlehi J stated in Kritzinger v CCMA & Others,[10] the aforementioned factors are not individually decisive but are interrelated and must be weighed against each other. In weighing the aforementioned factors for instance, the court of tribunal may find that a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly it may find that strong prospects of success may compensate the inadequate explanation and the long delay.

[45] In an application for condonation in terms of section 160(2)(b) of the Act, an applicant will succeed in showing good cause for a delay by means of giving an explanation that shows how and why the delay in filing of its application with the Companies Tribunal occurred.  In other words, the Applicant is required to be generous with the truth with regard to the cause of the delay.

[46] There are authorities which support the fact that the Companies Tribunal could decline the granting of the application for condonation if it appears to it that the late filing of the application was wilful or was due to gross negligence on the part of an applicant for condonation. In fact the Companies Tribunal could on this ground alone decline to grant an indulgence to an applicant for condonation. Prospects of success or bona fide defence on the other hand mean that all what needs to be determined by the Companies Tribunal is the likelihood or chance of success when the main case is adjudicated by the Companies Tribunal.[11]

[47] It is my view therefore that without a reasonable and acceptable explanation for the delay, the prospects of success will be rendered immaterial, and therefore an application for condonation should be refused.  Similarly without prospects of success, no matter how good the explanation for the delay could be, an application for condonation should be refused. It has also been held by the courts and tribunals that the applicant should bring the application for condonation as soon as it becomes aware of the lateness of the filing of its case with the court or tribunal.[12]

[48] In my view and coming back to the Application before me, proper explanation entails an explanation by the Applicant for each period of the delay and the disclosure of all the details relevant to the delay. The Applicant is therefore required to make full disclosure with regard to the delay.  In other words, the Applicant is required to be generous with the truth about the real cause of the delay thereby taking the Companies Tribunal into its confidence.

[49] In explaining why the delay (causes of the delay), the Applicant need to include the stage at which it became aware of the lateness in the referral of its Application to the Companies Tribunal. If the Application was not made immediately or soon after becoming aware of the lateness, the Applicant need to provide an explanation for such delay as well. Risking the danger of repeating myself, it is of crucial importance that the Applicant must take the Companies Tribunal into its confidence with regard to all facts which are relevant to the determination of its Application by the Companies Tribunal.  If the Applicant was to make minimal or no disclosure of all the relevant facts, the Companies Tribunal will unfortunately not come to its assistance.

[50] In terms of section 160(2)(b) of the Act, the Applicant just like any other interested person and at any time after registration of a company name is allowed to bring an application to the Companies Tribunal on good cause shown in the prescribed manner and form for a determination whether the name of the Respondent satisfies the requirements of the Act.

[51] In Highly Nutrious Food Company (Pty) Ltd v Companies Tribunal and Others,[13] Twala J held that section 160(2)(b) does not refer only to the delay in bringing the application but also to showing good cause as to why the application must be entertained by the Companies Tribunal.  According to him, this section therefore requires the Applicant to furnish a reasonable explanation for the delay in filing its application with the Companies Tribunal as well as a reasonable explanation as to why its application should be entertained by the Companies Tribunal.

[52] It is therefore clear that section 160(2)(b) does not only require an explanation regarding the delay in bringing the Application but also requires an explanation with regard to the merits of the Application as well.  I am therefore inclined to agree with the interpretation given to section 160(2)(b) of the Act by Twala J as outlined above. 

[53] I am therefore required, in terms of section 160(2)(b) of the Act, to make a determination with regard to the following factors in the process of my assessment of the Application:

53.1      the degree of lateness or non-compliance with the prescribed time frame by the Applicant;

53.2      the explanation for the lateness or  the failure to comply with time frames as alleged by the Applicant;

53.3      prospects of success in the main case as alleged by the Applicant;

53.4      the importance of the case to the Applicant;

53.5      the respondent’s interest in the finality of the matter or case brought before the Companies Tribunal by the Applicant;

53.6      the convenience of the Companies Tribunal in dealing with the application brought by the Applicant; and

53.7      avoidance of unnecessary delay in the administration of justice.

[54] I should therefore proceed to examine the papers placed before me to determine whether the Applicant did indeed succeed in showing good cause for the late filing of the Application in order for its Application to be entertained by the Companies Tribunal.  I should do so by assessing the current Application against each of the seven factors outlined in paragraph 53 above.  This will assist me to arrive at an appropriate determination on whether or not the Applicant succeeded in showing good cause for condonation of the late filing of the current Application and further for the current Application to be entertained by the Companies Tribunal.

The degree of lateness or non-compliance with the prescribed time frame by the Applicant:

[55] It has already been established that the Respondent was registered on the 20^th day of May 2016 under the name Soundworks Hermanus (Pty) Ltd.  The Applicant is objecting to the use of the word “Soundworks” on the name of the Respondent.

[56] Be that as it may, the Applicant does not disclose the date that it first became aware of the registration of the Respondent.  The date when the Applicant first acquired knowledge of the registration of the Respondent is very crucial for my determination.  Absent such information, I will therefore not be able to assess as to whether the Applicant managed to show good cause as required by section 160(2)(b) of the Act.

[57] The current Application was filed on the 07^th day of December 2017.  According to my calculations, the current Application was therefore filed after a period of more than one (1) year and six (6) months and seventeen (17) days had lapsed from the date that the Respondent was registered with CIPC.

[58] Absent any explanation from the Applicant I find the delay to be excessive and the Applicant must definitely provide a good explanation for the delay.  Due to the fact that the Applicant is required to and had failed to provide any explanation for such excessive delay, I will therefore be inclined to refuse condonation for such late filing.

The explanation for the lateness or the failure to comply with time frames offered by the Applicant

[59] The Applicant did not disclose to the Companies Tribunal in its papers as to when exactly did it became aware of the registration of the Respondent by the CIPC. I have further noted that there is no explanation that had been given by the Applicant for the delay in filing its Application with the Companies Tribunal.

[60] I therefore find such delay to be excessive and absent any explanation I also find such delay to be unjustifiable and unreasonable.  A delay of more than eighteen months must, in my view, count against the Applicant in my determination of the question whether or not the Applicant managed to show good cause for the delay.

[61] It is my considered view that the explanation for the delay and information to show good cause for the delay is of fundamental importance when dealing with applications similar to the current Application.  This will enable me to determine whether the Applicant did succeed in showing good cause for the late filing of the current Application and further to persuade the Companies Tribunal to entertain the current Application.

[62] I am therefore and for the reasons already stated above not satisfied that the Applicant had succeeded in providing a reasonable explanation for the delay to file its Application which occurred between 20 May 2016 and 07 December 2017.

[63] I have gone through the Supporting Affidavits deposed to by the members of the Applicant and I found no attempt by the Applicant to provide any explanation to the Companies Tribunal as to why the current Application was only filed with the Tribunal on 07 December 2017.

[64] In terms of section 160(2) of the Act, the Applicant is required to give proper explanation for the delay in bringing the current Application. More importantly the Applicant must provide an explanation for the delay which occurred between the date that it first became aware of the registration of the Respondent with the CIPC and the date of filing of the current Application.

[65] A proper explanation which is required in this regard entails an explanation by the Applicant for each period of the delay as I have outlined above and to further disclose all the details relevant to the delay to the Companies Tribunal. All that the Applicant is required to do and which it failed to do is to take the Companies Tribunal into its confidence.

[66] I therefore find that the Applicant failed to provide any sufficient explanation to justify the delay as outlined above.  This failure should therefore count against the Applicant in my determination of the question as to whether or not the Applicant succeeded in showing good cause for the delay to file its Application.

The importance of the case to the Applicant:

[67] Due to the fact that the Applicant failed to provide information with regard to the date when it first became aware of the registration of the Respondent with the CIPC, I am not able to make any comment with regard to this requirement.

The respondent’s interest in the finality of the matter or case brought before the Companies Tribunal by the Applicant:

[68] The Respondent has not filed any opposition to the Applicant’s objection to the registration of its name by the CIPC.  I am therefore not able to make any comment with regard to this requirement.

Avoidance of unnecessary delay in the administration of justice:

[69] It is trite law that condonation may be granted in instance where the interests of justice permit.  In the determination of the question as to whether condonation should be granted or not by the court or tribunal a lot depend on the facts and circumstances of a case that is being considered.  The factors to be considered when determining whether it is in the interests of administration of justice to grant condonation include the following:

69.1           the extent of the delay;

66.2           the explanation for the delay;

69.3           the effect of the delay on the administration of justice and the other litigants;

69.4           the importance of the issues to be raised in the case;

69.5           the prospects of success; and

69.6           the nature of the relief sought.[14]

[70] In my determination of the interests of justice, I am required to do so with reference to all the factors listed in paragraph 68 above.  I have already found that the delay in this matter is excessive, unjustifiable and unreasonable.

[71] It is my view that the delay undoubtedly has enormous and serious effect to the administration of justice more so if one is to consider it from the position of the Companies Tribunal and the Respondent, who is already using the name as registered by the CIPC.

[72] I therefore find that the administration of justice will not be best served by granting condonation to the Applicant for the late filing of its name objection Application.  Granting condonation to the Applicant will only serve to delay the administration of justice.  The administration of justice will on the other hand be best served in this matter by refusing to grant condonation to the Applicant for the late filing of its name objection Application.

Prospects of success in the main case offered by the Applicant:

[73] It has already been established that the Respondent was registered on the 20^th day of May 2016.

[74] As I have already stated all the factors which must be taken into account when dealing with condonation applications are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist the Applicant in compensating for weak prospects of success. Similarly strong prospects of success may compensate the inadequate explanation and the long delay.

[75] While I am mindful of repeating myself, when dealing with an application for condonation, good cause is shown by the Applicant giving an explanation that shows how and why the default occurred in the first place. There is authority that the Companies Tribunal could decline the granting of condonation if it appears that the default was wilful or was due to gross negligence on the part of the Applicant. In fact the Companies Tribunal could on this ground alone decline to grant an indulgence to the Applicant.  The prospects of success or bona fide defence on the other hand mean that all what needs to be determined is the likelihood or chance of success when the main case is heard by the Companies Tribunal.[15]

[76] It is important to point out that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and application for condonation should be refused.  Similarly without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. It has also been held by the courts that the applicant should bring the application for condonation as soon as it becomes aware of the lateness of its case.[16]

[77] The standard that is required in order to show prospects of success is lower than that applied when the main case is considered by the Companies Tribunal. The Applicant for condonation needs to show more than just listing factors related to prospects of success. The Applicant needs to persuade the Companies Tribunal that there is a chance of it getting the relief that it is seeking when the name objection Application is considered.  It is not sufficient for the Applicant to boldly claim that it has good prospect of success.  What is required from the Applicant is to set forth briefly and succinctly the essential information that may enable the Companies Tribunal to assess the Applicant's prospects of success. A bald submission unsupported by any factual averments is not good enough to discern what the prospects of success are in this matter.

[78] I am therefore required to analyse the papers placed before me in this matter in order to determine the question as to whether the Applicant managed to show that it has prospects of success in the main application.

[79] The Applicant only alleges, in the Supporting Affidavits, that the name of the Respondent is similar to that of the Applicant and further that the Respondent’s name could be seen as implying that the Respondent is a branch of the Applicant.

[80] It is clear that the name of the Respondent is not similar to that of the Applicant.  It follows therefore that section 11(2)(a) of the Act is not applicable in this matter.  It is further clear that the name of the Respondent is not confusingly similar to that of the Applicant.  It follows therefore that section 11(2)(b) of the Act is not applicable in this matter.

[81] Having arrived at the above conclusion, I am therefore called upon to do a comparison of the names of the Applicant and the Respondent with reference to the sense, sound and appearance to determine if section 11(2)(c) of the Act is applicable in this matter.

[82] The dominant feature in the names of the Applicant and the Respondent is the word “Soundworks”.  The principal businesses of the Applicant and the Respondent seem to be wholesale and retail trade of sound and lighting equipment.

[83] It is clear that the Respondent’s name incorporates wholly the dominant feature in the Applicant’s name and further that the overlapping of the business activities is imminent.  It follows therefore that the members of the public are likely to be confused into believing that the Respondent and the Applicant are associated in some way or the other.

[84] If the current Application was in compliance with Regulation 142(1)(b) and Regulation 142(3) of the Regulations and if the Applicant had succeeded in showing good cause as required by section 160(2)(b) of the Act, I was going to have no problem in finding that the Respondent’s name does offend the provisions of section 11(2)(c) of the Act.  I am however not in a position to do so at the moment for reasons already stated above.

THE FINDINGS

[85] It is my finding therefore that the Applicant had failed to provide the necessary explanation and reasons for the delay to file its name dispute application against the registration of the Respondent by the CIPC.  I therefore find that the delay which occurred between 20 May 2016 and 07 December 2017 is excessive, unjustifiable and unreasonable.  The Applicant did not make any attempt to provide the Companies Tribunal with any explanation for such delay.

[86] I have already found that the current Application does not comply with Regulation 142(1)(b) an Regulation 142(3) of the Regulations in as far as it lacks the minimum details as prescribed in terms of the aforesaid Regulations.  This therefore renders the current Application to be defective.

[87] I am therefore persuaded to dismiss the Application on the ground that the Applicant failed to provide a reasonable explanation for the delay in filing the application with the Companies Tribunal.  Similarly I am persuaded to dismiss the Application on the further ground that the Applicant failed to provide the minimum details in its Application as prescribed by Regulation 142(1)(a) and Regulation 142(3) of the Regulations.

THE ORDER

I therefore make the following order:

1)      The application for name objection against the registration of the name of the Respondent by the CIPC is hereby dismissed.

2)      There is no order with regard to costs.

_____________________________

LINDELANI DANIEL SIKHITHA

Member of the Companies Tribunal

21 May 2018

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