[3]          The regulations in terms of the Companies Act (GNR 351 of 26 April 2011) (“Companies Act regulations” / “regulations”) inter alia regulate an application to the Companies Tribunal (“Tribunal”).

[4]          The applicant, in the initial CTR 142 and supporting/founding affidavit, is Justin Sean Moodley (ID: [....]) the sole director of Electro Gadgets (Pty) Ltd (2013/046327/07), the latter being indicated in the applicant’s supplementary founding affidavit of 14 December 2021 as the applicant, represented by said Justin Sean Moodley and, eventually, by its attorney, Mr Masilo Fisha. The duplicity in the meaning of “applicant” will be addressed under the point in limine below.

[5]          The initial respondent (later the first respondent) is Electro Gadgets Boksburg (Pty) Ltd (2020/149547/07) represented by Zaman Qaisar (ID: [....]), duly authorised by the board of the respondent and by Adv Hazel Worthington with Ms Farzanah Manjoo, the attorney of record.

[6]          The (subsequent) second respondent is the Companies and Intellectual Property Commission (“CIPC”), as established under, and with the functions in, Part A of Chapter 8 of the Companies Act. The second respondent did not take part in the proceedings.

[7]          There was an extensive filing of “papers” and the sequence is set out below. I place on record my reliance on and indebtedness to the legal representatives of the applicant and first respondent for the comprehensive and thorough heads of argument.

[8]          The applicant filed an application on CTR 142 on 11 October 2021, together with a supporting affidavit (and a COR 21.1 from the CIPC indicating he is the sole director of Electro Gadgets (Pty) Ltd) attested to on 8 October 2021.

[9]          The relief applied for in the CTR 142 was against the first respondent for an: “order to immediately cease and desist all business activity using “Electro Gadgets)”.

[10]       The respondent indicated in the CTR 142 was Electro Gadgets (Pty) Ltd (2013/046327/07), actually the (eventual) applicant.

[11]       The relief sought in the supporting affidavit was different and was to: “Please close this company [‘Electro Gadgets Boksburg (Pty) Ltd’ Reg 2020/149547/07 referred to in the affidavit] as a matter of urgency.” This was because "This company (presumably the first respondent) was allowed to open and trade using our name by CIPC. They are direct competitors to us and it is causing reputational damage to our brand."

[12]       Also, in the supporting affidavit the applicant states: “I recently found out that CIPC has registered another company using our name ‘Electro Gadgets Boksburg’ Reg 2020/149547/07 without my knowledge or approval. They are direct competitors and my clients are getting confused.”

[13]       There is no information in the papers that the application and supporting documents were served on the first respondent as required by regulation 142(2). In its answering affidavit the first respondent states “5. I have read the affidavit deposed to by Mr Justin Moodley, dated 8 October 2021, which accompanies the Form CTR 142, and which was served on the offices of the Companies Tribunal on 11 October 2021 (‘the Application for Relief’) and hereby respond thereto.” However, Farzanah Manjoo Attorneys, the attorneys for the first respondent, in a letter of 17 December 2021 to Fisha Attorneys, the eventual attorneys for the applicant, states “1.1 Your client’s Founding Affidavit was served on our client on 15 October 2021.” Although regulation 142(2) is peremptory, i.e. the application and supporting documents “must” be served in the manner as indicated, the absence of proof to that effect should not be fatal, as receipt is admitted by attorneys for the first respondent and the latter therefore had knowledge of the process and the detail thereof.

[14]       The first respondent filed an answering affidavit dated (Sunday) 12 November 2021 with a filing notice from Farzanah Manjoo Attorneys that it was electronically filed and served on the applicant on that date. Regulation 142 requires such documents must be filed and served within 20 business days. Service on Sunday effectively means the next Monday, which is not within 20 business days.

[15]       The applicant then engaged Fisha Attorneys and filed and served a notice to that effect and of an intention to amend on 8 December 2021. On 14 December 2021 the first respondent filed a notice of objection to the amendment.

[16]       The applicant proceeded to file and serve on the first respondent a notice of intention to amend the founding affidavit on 14 December 2021. On even date it filed and served on the first respondent an application for joinder of the CIPC as second respondent to the proceedings, an application for leave to file a supplementary founding affidavit and condonation of the late filing of the application for joinder and leave to file a supplementary founding affidavit. The supplementary founding affidavit was filed and served on the first respondent also on 14 December 2021. The first respondent’s “conditional supplementary affidavit answering affidavit” to the applicant’s supplementary founding affidavit was filed on 25 January 2022.

[17]       The proposed amended founding affidavit of 8 December 2021 provided that the following relief (apart from cost order/s) is applied for:

“WHEREFORE the Applicant prays for an order:

1.1        That the name Electro Gadgets Boksburg (Pty) Ltd does not satisfy the requirements of sections 11(2)(b) and 11 (2)(c) of the Companies Act.

1.2        That the First Respondent is directed, in terms of section 160(3)(b)(ii) to choose a name which does not consist of, or incorporate, the mark or words “electro-gadgets”, or any other marks or words which are confusingly similar and/or deceptively similar to the Applicant’s “Electron Gadgets” (sic) trademark;

a

1.3        In the event that the Respondent fails to comply with the order set out in paragraph 1.2 above within three (3) months from the date of the order, that the Second Respondent be directed, in terms of section 160(3)(b)(ii) read with section 14(2) of the Act, to change the First Respondent’s name to “2020/149547/07 (Pty) Ltd”, as the First Respondent’s interim company name on the Companies register.

1.4         Costs in favour of the Applicant.”

[18]       The applicant filed and served on the first respondent a replying affidavit on the answering affidavit of the first respondent on 14 February 2022. In terms of regulation 144 the replying affidavit should be filed and served within 15 business days of receipt of the answering affidavit, and that would have been on 6 December 2021. The replying affidavit, taking into account the purported dies non from 20 December 2021 to 4 January 2022, if it is accepted that the Tribunal can declare a dies non or that the CIPC can declare such dies non on behalf of the Tribunal, a matter that is not clear and on which I make no ruling, was therefore filed some 33 days late. Paragraph 67 or the applicant’s replying affidavit, under the heading “Application for Condonation”, does not give any reason for the late filing.

[19]       There are various issues, some relevant and others not, that were raised in the papers between the parties.

[20]       At the virtual hearing on 24 February 2022 the parties agreed that the following matters are in issue:

[20.1] point in limine: locus standi of the applicant;

[20.2] application for the proposed amendment to the original founding affidavit; [20.3] condonation of the late filing of the replying affidavit of the applicant and

[20.4] merits of the application and relief sought, including costs.

[21]       It was accepted by the parties that the application for joinder of the CIPC be allowed as the CIPC should have been cited, and this matter was therefore disposed of.

[22]       Due to the fact that the issue of locus standi of the applicant is material, and because the ruling of the Tribunal must be given in writing in terms of section 195(5) of the Companies Act, it was agreed that instead of making a ruling on locus standi first which would entail adjournment of the hearing until the written ruling is given, all the matters will be heard in one hearing.

[23]       The sequence of the matters above are then obviously important and can be summarised as follows:

If it is determined that the applicant does not have locus standi, it is the end of the matter; If it is determined that the applicant has locus standi, the application for the proposed amendments to the founding affidavit will be decided. This then leads to the next matter: if the amendments to the original founding affidavit are not allowed, the matter is decided on the application and relief sought in the original (CTR 142 and) supporting/founding affidavit and the answering and replying affidavits on that basis. If the amendments are allowed, the matter will proceed on the amended supporting/founding affidavit and of the replying affidavit.

ISSUES and APPLICABLE LAW

[24]       The Tribunal is a “creature of statute” and has no jurisdiction other than that conferred on it by the Act: Duduzile Cynthia Myeni vs CIPC CT006Mar2017 (29 Jun 2017) paras 9–1. Its process is set out in, inter alia, regulations 141 to 164.

Regulation 154 provides:

“(1) If, in the course of proceedings, a person is uncertain as to the practice and procedure to be followed, the member of the Tribunal presiding over a matter—

(a)          may give directions on how to proceed; and

(b)          for that purpose, if a question arises as to the practice or procedure to be followed in cases not provided for by these regulations, the member may have regard to the High Court Rules [Uniform Rules of Court].” (Emphasis is mine).

[25]       Section 160, that determines the jurisdiction of the Companies Tribunal, provides, as far as it is relevant for the present matter, as follows:

“160. Disputes concerning reservation or registration of company names.—(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)             ...

(b)            on good cause shown at any time after the date of the ... 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—

...

(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.

[25]           Point in limine

The point in limine was raised by the first respondent and as such was given the opportunity to address the Tribunal first, with opportunity to the applicant to respond. The point in limine is basically that Justin Sean Moodley, as the applicant in the original CTR 142 is not authorised by the (eventual) applicant to bring this application. A more fundamental objection, that is actually a sine qua non of the authorisation objection, is that said Justin Sean Moodley is not a “person with an interest in the name of a company” as required in section 160(1). Said Justin Sean Moodley is the sole director and shareholder of Electro Gadgets (Pty) Ltd. As such he is the person who manages the “business and affairs” of Electro Gadgets (Pty) Ltd and is both the organ and agent for the company: see section 66 of the Companies Act. As such he does not only have the right to manage, he is also subject to exacting duties as detailed in section 76, in addition to his common law fiduciary duties – as much is trite and authority is unnecessary. He is therefore required to act in the best interest of the company and if there is a purported or possible prejudice to the company, any inaction on his part will be a breach of the above duties. As such he clearly is a “person with an interest in the name of a company”, albeit in a representative capacity: see Henochsberg on the Companies Act 2008 for a discussion of sections 66, 76, as well as section 75 that deals with the basic common law duties.

[26]           The objection as to Justin Sean Moodley’s authority to act for and on behalf of the applicant is strange. As I understand it, “facts” in an affidavit is not required to be proved in that affidavit – that is why it is attested to – and a copy of the CIPC records, which is public information, was attached to the original founding affidavit. He is the sole director and as such has all the powers as in section 66. Also, to purport to have a “meeting” of a single director, as was attempted by the first respondent, is equally or even more strange. A person cannot have a meeting with himself and much less have “minutes” of such a meeting. Section 57(4) of the Companies Act addresses the position of a sole director and shareholder of a company and the situation is, I think, quite clear.

[27]           Justin Sean Moodley therefore is a “person with an interest in the name of a company” and in addition, or alternatively, has, as director, ipso facto the original authority to act for and on behalf of the company and to institute legal proceedings without the requirement of delegated authority and therefore has locus standi.

[28]           Application for the proposed amendment to the original founding affidavit

Regulation 142, as far as it is relevant in this matter, provides as follows:

“142. Applications to the Tribunal in respect of matters other than complaints.—(1) A person may apply to the Tribunal for an order in respect of

any matter contemplated by the Act, or these regulations, by completing and filing with the Tribunal’s recording officer—

(a)          an Application in Form CTR 142; and

(b)          a supporting affidavit setting out the facts on which the application is based.

(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.

(3)          An application in terms of this regulation must—

(a)          indicate the basis of the application, stating the section of the Act or these regulations in terms of which the Application is made

...”

Regulation 145 provides:

“145. Amending documents and Notices of Motion.—(1) The initiating party may apply to the Tribunal by Notice of Motion at any time before the end of the hearing of the matter for an order authorising them to amend their initiating document as filed.

(2)          If the Tribunal allows an amendment, it must allow any other party affected by the amendment to file additional documents consequential to those amendments within a time period allowed by the Tribunal.

(3)          A Notice of Motion to be made before the Tribunal, for any purpose in terms of the Act and these regulations, must be in Form CTR 145.”

[29]           The Tribunal therefore has a discretion to allow an application for an amendment to an “initiating document”. The “initiating document” in this instance should be, it is suggested, as provided in regulation 142(1), i.e. the CTR 142 and the supporting [founding] affidavit.

[30]           In respect of rule 28 of the [now] Uniform Rules of Court, which should also apply to regulation 145, the court in Commercial Union Assurance v Waymark 1995 (2) SA 73 (TkGD) at page 77 F-I summarised the principles as set by case law as follows:

“1.   The Court has a discretion whether to grant or refuse an amendment.

2.       An amendment cannot be granted for the mere asking; some explanation must be offered therefor.

3.        The applicant must show that prima facie the amendment ‘has something deserving of consideration, a triable issue’.

4.        The modern tendency lies in favour of an amendment if such ‘facilitates the proper ventilation of the dispute between the parties’.

5.        The party seeking the amendment must not be mala fide.

6.        It must not ‘cause an injustice to the other side which cannot be compensated by costs’.

7.        The amendment should not be refused simply to punish the applicant for neglect.

8.        A mere loss of time is no reason, in itself, to refuse the application.

9.        If the amendment is not sought timeously, some reason must be given for the delay.”

[31]           See also Man In One CC v Zyka Trading 100 CC and Others (5335/2014) [2022] ZAFSHC 33 (3 March 2022) para 13 where the court said that:

“The locus classicus on approach to amendments is Moolman v Estate Moolman 1927 CPD 27 at 29 where the court held: ‘The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purpose of justice in the same position as they were when the pleading which it is sought to amend was filed.’”

[32]           Where a pleading (of an applicant) is vague and embarrassing, the other party (respondent) must afford the first party (applicant) an opportunity to remove the cause of complaint according to rule 23(1) of the Uniform Rules of Court. However, this process does not apply where a pleading “lacks averments which are necessary to sustain an action...”.

[33]           I do not understand the authorities or the Uniform Rules of Court to enable an applicant to amend a materially defective initiating document. It is therefore necessary to turn to the original application (CTR 142 and founding affidavit) and evaluate the application of the proposed amendment.

[34]           The relief applied for in the CTR 142 was an: “order to immediately cease and desist all business activity using “Electro Gadgets)”. The relief sought in the supporting affidavit was “Please close this company as a matter of urgency.”

[35]           At this stage it is clear that the applicant applied for relief, and not the cause of action for that relief. It is trite that in terms of section 160 the Tribunal cannot order a business to cease trading (“close” a company). However, I am of the opinion that the “statement” in the CTR 142 that the first respondent must “cease and desist all business activity using ‘Electro Gadgets)’” could be interpreted as an application for an order for the cessation of the business, but also for an order for the cessation of the business with the name (containing) “Electro Gadgets”. However, in the supporting affidavit the prayer for relief is: “Please close this company as a matter of urgency.” and “This company (presumably the first respondent) was allowed to open and trade using our name by CIPC. They are direct competitors to us and it is causing reputational damage to our brand." and “I recently found out that CIPC has registered another company using our name ‘Electro Gadgets Boksburg’ Reg 2020/149547/07 without my knowledge or approval. They are direct competitors and my clients are getting confused.”

[36]           In addition, despite the two possible interpretations if the statement in the CTR 142 and the founding affidavit are read together, the declaration in the founding affidavit will obviously be conclusive if there is ambiguity. It is clear that, in terms of the section 160, the Tribunal does not have the power to “close down” a company: see Duduzile Cynthia Myeni vs CIPC CT006Mar2017 (29 Jun 2017) paras 9–11 in respect of the jurisdiction of the Companies Tribunal as “creature of statute”.

[37]           In Swart v Heine and Others (192/2015) [2016] ZASCA 16 (14 March 2016) at para 7 the court said: “In my view it is not necessary for a litigant who is relying on a statutory provision to specify it. It is sufficient if it is clear from the facts alleged by the litigant that the section is relevant and operative. This point was made clear in Fundstrust (Pty) Ltd (in liquidation) v Van Deventer 1997 (1) SA 710 (A) 725H-726A, where this court stated the following:

‘It is not necessary in a pleading, even where the pleader relies on a particular statute or section of a statute, for him to refer in terms to it provided that he formulates his case clearly (see Ketteringham v City of Cape Town 1934 AD 80 at 90) or, put differently, it is sufficient if the facts are pleaded from which the conclusion can be drawn that the provisions of the statute apply (see Price v Price 1946 CPD 59, Wasmuth v Jacobs 1987 (3) SA 629 (SWA) at 634I).’

See also in this regard Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others [2004] ZACC 15; 2004 (4) SA 490 (CC) para 27.”

[38]           The application clearly does not “indicate the basis of the application, stating the section of the Act or these regulations in terms of which the Application is made...” (regulation 142(3)(a)). Strict compliance with the exact words of regulation 142(3)(a) cannot be a requirement as it would be form over substance, and non-compliance will therefore not be fatal to the case of the applicant as is clearly stated in the Swart case supra and authorities there quoted that, “it” is sufficient if it is clear from the facts alleged by the litigant that the section is relevant and operative.” The CTR 142 and supporting affidavit however, do not provide any facts that are clear what the basis for the requested relief is, or even what relief is required that is within the powers of the Tribunal. An amendment (and therefore also a supplementary affidavit to support such an amendment) cannot amend or supplement a defective application (and founding affidavit) and for this reason the purported application for the amendment of the application and also therefore the supplementary application are refused.

[39]           The requirements as in regulation 142(3)(a) were not complied with either in form or substance and the application is defective. This obviously also obviates the need for a ruling for condonation for the late filing of the replying affidavit by the applicant.

FINDING AND ORDER

[40]           The application is refused.

[41]           There is no order as to costs.

SIGNATURE PA DELPORT

COMPANIES TRIBUNAL: MEMBER