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Majestic Silver Trading 389 Proprietary Limited v Companies and Intellectual Property Commission (CIPC) (CT004Dec2013) [2014] COMPTRI 4 (24 February 2014)

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THE COMPANIES TRIBUNAL OF SOUTH AFRICA

CASE NO: CT004Dec2013

In the matter between:

Majestic Silver Trading 389 Proprietary Limited (Registration number: 2008/007097/07)                                             Applicant

and

The Companies and Intellectual Property Commission (CIPC)                                                                                      Respondent

Coram: S. Gounden

Decision handed down on 24 February 2014

DECISION

INTRODUCTION

[1] The Applicant applies in terms of section 83 of the Companies Act 71 of 2008 (“Act” / “Companies Act”) and regulations 40 of the Companies Act (“Companies Act regulations” / “regulations”) for a default order that the respondent be ordered to re-instate a deregistered company.

BACKGROUND

[2] The Applicant registered the company “Majestic Silver Trading 389 Proprietary Limited” in the year 2008 and has been conducting business under that name since then.

[3] The Applicant filed an application for CIPC to re-instate the deregistered company as stated above as prescribed by regulation 142 (1) (a), together with a supporting affidavit as required by regulation 142 (1) (b).

[4] There is no proof that the application was served by the Sheriff / registered post to the Respondent. In terms of regulation 142 (2) it should be done within 5 days of filing it with the Companies Tribunal. The date stamp of the Companies Tribunal on the CTR 142 is the 3 December 2013.

[5] Regulation 142 provides as follows:

“(2)  The applicant must serve a copy of the application and affidavit on the respondent named in the application, within 5 business days after filing it.”

The copy of the application was e-mailed to the respondent on the same day as the filing.

[6] In terms of regulation 153 (1) read with regulation 143 (1), the first respondent has 20 days to respond, failing which the Applicant is entitled to apply for a default order as provided for in regulation 153 (1).

[7] No response was received from the Respondent and the Applicant therefore applies to the Companies Tribunal in terms of regulation 153 (2) that said Companies Tribunal makes a default order in terms of regulation 153 (1).

ISSUES

[8] The application was served on the Respondent by e-mail and not by the Sheriff or by registered post.

[9] However, based on the findings of the Companies Tribunal on the substantive law, it is not necessary to make a finding as to defects, in [8] above, and the possible application of section 6 (9) and (10) of the Companies Act in respect of substantial compliance.

[10] The Applicant requests that the Companies Tribunal grants the relief in the form that the Respondent be ordered to re-instate the deregistered company.

[11] The Applicant claims that the company was not dormant as it had an investment in another company in its own name and that CIPC would not re- instate the registration as CIPC has classified the company as dormant.

APPLICABLE LAW

[12]  The jurisdiction of the Companies Tribunal is stated in section 83 of the Act and is as follows:

“(4)    At any time after a company has been dissolved (deregistered) - (a)…person with an interest in the company, may apply to a court for an order declaring the dissolution to have been void, or any other order that is just an equitable in the circumstances

EVALUATION

[13] The question that needs to be answered is whether the Companies Tribunal has jurisdiction to grant an order in terms of Section 83 of the Companies Act.

FINDINGS

[14] It is clear that the Companies Tribunal do not have jurisdiction to order the CIPC to re-instate a deregistered company, as it is not a “court”.

ORDER

[15] The application that the Respondent must reinstate the deregistered company cannot be granted, as the Companies Tribunal does not have jurisdiction on this matter.

_______________________________

S. Gounden

MEMBER OF THE COMPANIES

TRIBUNAL

Pretoria