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IN THE COMPANIES TRIBUNAL OF THE REUBLIC OF SOUTH AFRICA

("The Tribunal")

 

CASE NO. CT00740ADJ2021

 

In the matter between:

 

Neo Africa Capital (Pty) Ltd                                                                   Applicant

AND

 

Neucapital Africa Services (Pty) Ltd                                                     Respondent

 

 

DECISION

 

 

INTRODUCTION:

 

[1]          The applicant is Neo Africa Capital (Pty) Ltd, a company duly registered in terms of the company laws of the Republic of South Africa, with registration number 2014/088038/07, with its business address at 2nd Floor, South Wing, 345 Rivonia Boulevard, Rivonia, Gauteng[1].

 

[2]          The respondent is Neucapital Africa Services (Pty) Ltd, a company registered in terms of the company laws of the Republic of South Africa, with registration number 2018/103941/07, having its registered address at 13 Hawthorne Drive, Mount Edgecombe Country Estate, Mount Edgecombe, KwaZulu Natal[2].

 

[3]          This is an application for a default order, in terms of S.160 of the Companies Act

 

( 'the Act'), read with Regulation 153, that the respondent, Neucapital Africa Services (Pty) Ltd, does not satisfy the requirements of section 11 of the Act and that the respondent be directed to choose a new name as provided for in section 160(3)(b)(ii) of the Act.

THE APPLICATION

 

[4]          The application for relief, in the form CTR142 with the accompanying affidavit, was filed with the Tribunal on 30 June 2021. The affidavit was deposed to by Vivien Natasen, who is the sole director and shareholder of the applicant. The applicant has submitted that it is reporting a conflicting name in the name of the respondent and requests the Tribunal to remove the conflicting name[3]. While the applicant has not specified any section of the Act in which he relies and upon which this application is based, as required by regulation 142(1)(b), the applicant displays an understanding that the respondent's name cannot be "in conflict" with his company name. In terms of regulation 142(2), the applicant had five days from 30 June 2021, to serve the application and the affidavit upon the respondent, which 5 days expired on 07 July 2021. The applicant has submitted proof of email service upon the respondent on 06 July 2021 using the enquiries@neucapital.africa email address, and has submitted proof of successful delivery of the email. It seems that the Sheriff also attempted service upon the respondent at Sandhurst Office Park (POPLARS), 7 Federal Avenue, Sandton. The Sheriff's non-service return states that the application for relief could not be served at the respondent is unknown at given address, as informed by security[4]. It is not clear , from the limited documentation and data received by the Tribunal, why an attempt to serve the respondent was made at a different address and province to the one showing in the CIPC company document, being 13 Hawthorne Drive, Mount Edgecombe Country Estate, Mount Edgecombe, KwaZulu Natal. I am unbale to find the connection between the two addresses, which also creates some doubt whether, having not responded to the email, the email address used was in fact that of the respondent and whether the respondent did in fact receive service of the application and affidavit, as required by regulation 142(2).

 

EVALUATION AND FINDINGS ON COMPLIANCE

 

[5]          I have already expressed my doubt above regarding the service of this application upon the respondent. Regulation 153 which regulates default order processes, provides that "(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 application in terms of sub regulation (1), the Tribunal may make an appropriate order- (b) if it is satisfied that the notice or application was adequately served". I am not satisfied that the application was adequately served upon the respondent. Further, and to assist the applicant should he wish to file a new application in this regard, I will draw attention to section 160 of the Act, particularly subsections 1 and 2(b) which require a person with an interest in the name of a company, to apply to the Companies Tribunal in the prescribed manner and form for a determination whether the registration of a name satisfies the requirements of the Act. The Applicant will have to identify which section of the Act it relies upon in pursuing this application against the respondent. Subsection 2(b) goes further to state that an application in terms of subsection (1) may be made "on good cause shown" at any time after the date of the registration of the name that is the subject of the application. The applicant has not indicated when he became aware of the existence of the respondent, what attempts he made to alert the respondent regarding the "conflicting name" and to get the respondent to change his name. The applicant must give reasons, quoting the correct sections of the Act, why he considers the name of the respondent in conflict with his company name and any implications on his company if the name continues to exist. This is particularly in light of the fact that the applicant was registered on 01 March 2018, some four years prior to lodging this application with the Tribunal.

 

ORDER

 

The application is dismissed.

 

 

04 April 2022

B. Zulu

Member: Companies Tribunal

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