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IN THE COMPANIES TRIBUNAL OF THE REUBLIC OF SOUTH AFRICA

 

("The Tribunal")

 

CASE NO. CT01057ADJ2022

 

In the matter between:

 

Provantage (Pty) Ltd                                                  Applicant

 

AND

 

PMG Media (Pty) Ltd                                                   First Respondent

Registration No. 2021/439230/07

Commissioner of the Companies and Intellectual

 

Property Commission                                                 Second Respondent

 

 

DECISION

 

 

[1]         The applicant is Provantage (Pty) Ltd, a private company duly registered in terms of the company laws of the Republic of South Africa, with registration Number: 2003/009227/07, having its registered office at 7 York Street, Kensington B, Randburg, 2194[1].

 

[2]         The first respondent is PMG Media (Pty) Ltd, a private company incorporated in terms of company laws of the Republic of South Africa, having its registered office at 5 Polo, Extension 32, Blue Hills, Midrand, 1685[2].

 

[3]         The second respondent is the Commissioner of the Companies and Intellectual Property Commission, appointed in terms of section 189 of the Act, cited in his capacity as the person responsible for the function of the Companies and Intellectual Property Commission (CIPC), established in terms of section 185 of the Act and with its offices situated at 77 Meintjies Street, the DTI Campus, Block F, Sunnyside, Pretoria.

 

[4]         This is an application for a default order, in terms of S.160 of the Companies Act ( 'the Act'), read with Regulation 153, for a determination that the first respondent's name; PMG MEDIA, is in conflict with the provisions of Section 11(2) of the Act and consequently requesting the Tribunal to consider this application.

 

[5]         The applicant requests that the Tribunal grant the following relief:

 

(i)           directing that the first respondent change its name, PMG MEDIA (Pty) Ltd, to one which does not incorporate the PMG trade mark, or any mark that is confusingly or deceptively similar thereto;

 

(ii)         in the event that the first respondent fails to comply with the order set out above, directing the second respondent to change the name of the first respondent to one which does not incorporate the applicant’s registered trade mark; and/or

 

(iii)       further and /or alternative relief.

 

Substantive Compliance-Delivery of Documents

 

[6]         The application for relief, in the form CTR142 with the accompanying affidavit deposed to by Johan Frederick Scholtz, the applicant’s Chief Financial Officer, duly authorized[3], was filed with the Tribunal on 09 June 2022. Tyrone Walker of Kisch Attorneys has filed this default application on behalf of the applicant, also authorized by virtue of resolution of Board of Directors dated 19 April 2022. On 13 June 2022, the Sheriff for Halfway House, Alexandra, attempted to serve the application for relief and founding affidavit upon the first respondent but “was unable to serve the Application for relief and founding affidavit, as the given address could not be found. Kindly furnish me with the correct address as 5 Polo Street, extension 32, Blue Hills, Midrand, Gauteng, does not exist, the numbers are from 1630 to 1636.” It seems that on 16 June, the application (Form CTR142 and founding affidavit) was also emailed to a motloilebohang@gmail.com, who according to the disclosure certificate, is one of the directors of the first respondent (Motloi Godfrey Lebohang), but there does not seem to have been a response from this address, nor is there proof of transmission of this email communication. The applicant has further furnished proof that the application was provided to the applicant’s former attorneys, who advised that they no longer act for the applicant. The applicant has advised that service was effected in accordance with the Companies Regulations in GN34239 GG of 26 April 2011, in terms of which a notice or document to be delivered, for any purpose contemplated in the Act or Regulations, may be delivered in any manner as set out in table CTR3.

 

[7]         While the applicant has provided proof that a letter of demand sent to the first respondent was received and acknowledged by the applicant’s former attorneys, Gwebu Inc.[4], who advised that they take note of the objection to the company name of the first respondent and gave a commitment that the first respondent would “attend to the CIPC to apply for a name change based on the reasons furnished in your letter, and approval of such proposed name we shall notify your office as soon as possible in ensuring that this matter is resolved amicably”, it seems that when this commitment was not actioned accordingly and this application was served upon the first respondent’s attorneys, they were no longer representing the applicant. The applicant made a request that the application documents be forwarded onto the first respondent, but no proof of such transmission has been furnished.

 

Relevant Case Law

 

[8]         Regulation 7(1) provides:

 

(1)   A notice or document to be delivered for any purpose contemplated in the Act or these Regulations may be delivered in any manner-

(a)   contemplated in section 6(10) or (11); or

 

(b)   set out in Table CR 3. Section 6(10) and (11) provides for electronic transmission of delivery of documents, and Table CR3 of Annexure 3 to the Regulations provides for the delivery of documents to a company or corporate body "by handing the notice or a certified copy of the document to a responsible employee of the company or body corporate at its registered office of its principal place of business within the Republic; or if there is no employee willing to accept service, by affixing the notice or a certified copy of the document to the main door of the office or place of business."

 

[9]         Section 6(9) of the Act states:

 

If a manner of delivery of a document, record , statement or notice is prescribed in terms of this Act, for any purpose-

(a)  it is sufficient if the person required to deliver such a document, record, statement or notice does so in a manner that satisfies all the substantive requirements as prescribed; and

(b)  any deviation from the prescribed manner does not invalidate the action taken by the person delivering

that document, record, statement or notice, unless the   deviation-

(i)   materially reduces the probability that the intended   recipient will receive the document, record, statement or notice; or

 

(ii)   is such as would reasonably mislead a person to whom the document, record, statement or notice is , or is to be, delivered.

 

[10]      Regulation 153 provides:

 

(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.

 

Findings

 

[11]      I am not satisfied that the application (form CTR142 and founding affidavit) was adequately served upon the first respondent. Nothing in the information submitted to me, gives me confidence that the first respondent is aware of these Tribunal proceedings against it. There has not been substantive compliance with the legal requirements on service/delivery of documents. As stated above. None of the information provided shows any particular date that can effectively be deemed as the date of service upon the first respondent, in circumstances where the Sheriff could not serve the application at the given address, which is the address of registered office of the business as per the disclosure certificate, as it could not be found. I therefore do not accept the submission by the applicant that the application was served upon the first respondent in line with Table CR3, as the address of the first respondent could not be located for service.

 

[12]      Regulation 7(3) states as follows”

 

If, in a particular matter, it proves impossible to deliver a document in any manner provided for in the Act or these Regulations-

 

( a) if any person other than the Tribunal is required to deliver the document, the person may apply to either the Tribunal or the High Court for an order of substituted service.

 

ORDER

 

The application is refused based on the fact that the first respondent has not been adequately served with the application. The applicant is encouraged to apply to the Tribunal for an order for substituted service.

 

 

B. Zulu

 

Member: Companies Tribunal

 

22 September 2022

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