COMPANIES TRIBUNAL OF SOUTH AFRICA

Transcription

1 COMPANIES TRIBUNAL OF SOUTH AFRICA In the matter between: Case/File Number: CT011JUN2017 DANGOTE CEMENT SOUTH AFRICA (PTY) LTD Applicant and DANGOTE CEMENT DWAALBOOM MINING (TRACKING NUMBER: ) Respondent Presiding Member : Khashane La M. Manamela (Mr.) Date of Decision : 29 September 2017 DECISION (Order and Reasons therefor) Khashane La M. Manamela 1

2 Introduction [1] This is an application initiated by a certain Jennifer Bennette (Bennette), the company secretary of the applicant, ostensibly acting on behalf of the applicant. This Tribunal is requested, in terms of the application for relief (i.e. Form CTR 142), to attend to cancel the name reservation and disallow any future name reservations similar to Dangote, being the companies we present [sic]. 1 But, the aforementioned relief metamorphosed in the request for default order (i.e. Form CTR 145) to simply Cancellation of the name reservation of Dangote Dwaalboom Mining (Pty) Ltd. 2 [2] Essentially, the applicant or Bennette complains, in terms of this application that, a certain Shaheer Noormohamed (Noormohamed) reserved the company name, cited as the respondent above, without consent of the applicant or its proprietors. Consequently, further from what has already been stated above, this Tribunal is requested to investigate this matter extensively as potential fraud could be committed with fraudulent companies being registered and that this poses as a [sic] reputational damage to our company. 3 [3] However, this application is riddled with deficiencies or defects of both procedural and substantive nature. These defects, include the absence of authority to bring the application or initiate these proceedings; service of the application at an incorrect address and lack of juristic personality on the part of the cited respondent. The application, therefor, cannot succeed and ought to be refused. I will briefly deal with 1 See Form CTR 142 dated 24 May 2017 on indexed p 6. 2 See Form CTR 145 dated 20 September 2017 on indexed p 1. 3 See par 7 of the affidavit attached to the Form CTR 142 (supporting affidavit) on indexed p 10. 2

3 these defects below, after a brief narration of the background to the matter, only to refuse the application. Brief background [4] In terms of the affidavit in support of the application, the following, among others, are circumstances that gave rise to this application: 3. On the 6 th March 2017, an was received from the City Press and on 23 March 2017, at approximately 11:06 am, I received an from Lauren Wilson of Attorneys Cliff [sic] Dekker informing me that an individual by the name of Shaheer Noormohamed with ID number has incorporated companies with very similar names to that of Dangote Cement South Africa (Pty) Ltd as well as other well-known companies in South Africa. 4. On doing a search on the CIPC website ( Annexure A ), it also came to my attention that similar company names to ours, being Dangote Cement South Africa (Pty) Ltd and Dangote Dwaalboom Mining (Pty) Ltd have been reserved and incorporated by the CIPC in 2016, without the permission of Dangote Cement South Africa (Pty) Ltd. Wrongful name reservation/incorporation of companies by CIPC Enterprise name Enterprise/ Director Status tracking no. Dangote Dwaalboom Mining reserved Dangote Group reserved Dangote Cement 2016/354446/07 Shaheer Noormohamed registered on Dangote Group 2016/279226/07 Shaheer Noormohamed registered on

4 Further attached hereto are the following CIPC searches relating to the above Companies, from which you will note the names of the Directors, registered address, Auditors etc. Further attached is Annexure F from which you will note from the full director report of Shaheer Noormohamed that he appears to be a director of the aforementioned several well-known companies. 4 [5] After becoming aware of the alleged unauthorised activities by Noormohamed, the applicant or its associates or functionaries, appears to have instructed a private investigator or forensic investigator to assist in the matter. The affidavit by the investigator is included as part of the papers. 5 But, the affidavit merely serves to report what steps were taken by the investigator or what had transpired in the matter, including the report made to the South African Police Service (SAPS); the pending investigation by the SAPS in this regard, and the unsuccessful attempts to have the matter resolved by the Companies and Intellectual Property Commission (CIPC). These activities were between 11 March 2017 and 26 April [6] On 9 June 2017, Bennette initiated this application with this Tribunal. Although, I will have more to say about this below, suffice for now to state that the papers were served by the sheriff on the respondent on 14 June With no response to the application, the request for default order was subsequently filed as contemplated by 4 See pars 3 and 4 of the supporting affidavit on indexed p 9. 5 See indexed pp 41 and 44. 4

5 regulation 153 of the Companies Regulations, I deal next with the deficiencies or shortcomings in the application, as alluded to above. Absence of authority to bring the application [7] As indicated above, the application is brought by Bennette in her capacity as the company secretary of the applicant. Bennette avers that she has the requisite authority and qualification to depose to the affidavit. I do not doubt that Bennette is, indeed, the company secretary of the applicant. But, there is no proof of authority, invariably in the form of a resolution passed by the board of the applicant, authorising the proceedings to be initiated. [8] It appears that this deficiency was brought to the attention of Bennette by the office of the registrar of this Tribunal on 08 June 2017, already. Thereafter, Bennette or someone on her behalf, filed, as proof of authority, a power of attorney dated 06 June 2017, given by one Pieter Frederick Fourie (Fourie). But, the power of attorney appears to have been more intended to grant authority to Bennette to depose to the affidavit, which is not of particular concern, once the proceedings are authorised. 6 [9] Be that as it may, Fourie s position or relationship with the applicant is not specified in the power of the attorney. External of the document, I was able to learn from other papers in the file that Fourie is the director of the applicant. However, this does not resolve the issue as from the very same sources it is clear that Fourie is only one of the directors and will not single-handedly constitute the board of the applicant, as 6 See Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624G. 5

6 contemplated in section 66 of the Companies Act 71 of (Companies Act). His purported authority also need to be authorised by the board of directors or the memorandum of incorporation, both of the applicant, and there is ultimately an unintended a merry-go-round of authority or the absence thereof. [10] The situation is explained better in the decision of Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk, 8 wherein it was held that where a company commences proceedings by way of petition, it must appear that the person who makes the petition on behalf of the company is duly authorised by the company to do so. This seems to me to be a salutary rule and one which should apply also to notice of motion proceedings where the applicant is an artificial person. In such cases some evidence should be placed before the Court to show that the applicant has resolved to institute the proceedings and that the proceedings are instituted at its instance. 9 The absence of proof of authority to initiate the proceedings or bring the application renders the application stillborn and worthy of a dismissal. [11] Although, this ordinarily ought to be the end of the matter, I will nevertheless proceed to deal with what I have identified as other deficiencies in the application, for completeness. 7 Section 66(1) of the Companies Act 71 of 2008 reads as follows: The business and affairs of a company must be managed by or under the direction of its board, which has the authority to exercise all of the powers and perform any of the functions of the company, except to the extent that this Act or the company s Memorandum of Incorporation provides otherwise (2) SA (C). 9 See Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk at 351H. 6

7 The cited respondent [12] Evidently, what is cited as the respondent above is not even a company or juristic person, but only a company name presumably reserved by Noormohamed. This company name, Dangote Dwaalboom Mining, everywhere it appears in the papers is identified through the tracking number, presumably allocated by the CIPC upon its reservation. The cited respondent, therefore, lacks capacity legal standing or capacity to sue or be sued and cannot occupy a position of a litigant or a party in litigation. 10 [13] However, what puzzles me is that, from the background above, it is very clear that Bennette was, at all material times, aware or suspected with some measure of reasonableness that, Noormohamed reserved the impugned name. 11 It therefore baffles one s mind why this litigation was not directed towards Noormohamed. This is so, despite the fact that Bennette appears to have been assisted by a firm of attorneys in the application. [14] Although, from the documents on file, I am aware that Noormohamed had successfully registered private companies known as Dangote Cement (enterprise number 2016/354446/07) on 17 August 2016 and Dangote Group (enterprise number 2016/279226/07) on 11 July 2016, 12 he did not register Dangote Dwaalboom Mining, which is a name similar to the name of one of the companies in the applicant s stable (i.e. 10 See Herbstein and Van Winsen The Civil Practice of the High Courts of South Africa 5 th ed (Juta Cape Town 2009) (Herbstein and Van Winsen) at 143 et seq. 11 See the quotation under par 4 above. 12 See indexed pp 14 and 15. 7

8 Dangote Dwaalboom Mining (Pty) Ltd (enterprise number 2009/013779/07)), 13 but only reserved a similar company name. 14 However, the respondent, against whom relief is sought in terms of this application, is simply Dangote Dwaalboom Mining, as cited above, 15 which against the possibility of repeating myself - is not a legal person with capacity to sue or be sued. Service of the application [15] The application was served on a receptionist of an entity called H Gordon & Partners at 94 Regency Drive, Route 21 Corporate Park, Irene on 14 June [16] Although, it is submitted that the abovementioned address is the respondent s main place of business, 17 this is clearly incorrect. The address, as garnered from elsewhere in the papers, belongs to Dangote Cement 18 and Dangote Group, 19 albeit that these entities appear to have Noormohamed as sole director. It does not belong to the reserved company name or Noormohamed, as the person who appears to have reserved same. 13 See par 4 on indexed p 9; indexed p Ibid. 15 See par 4 on indexed pp 2-3; indexed pp5,6, 7 and See the sheriff s return of service on indexed p See par 7 of the affidavit in support of the request for default order on indexed p See indexed p See indexed page 15. 8

9 [17] The applicant, in my view, ought to have at least cited Noormohamed as the respondent and used his address appearing on the very same documents filed by the applicant as th Avenue, Laudium 0037, 20 for service of the application. [18] Therefore, the application was not served in terms of methods for delivery of documents as reflected in Table CR 3 of Annexure 3 of the Companies Regulations and contemplated in terms of regulation 7 of the Companies Regulations. The same regulation provides for substituted service where in a particular matter, it proves impossible to deliver a document in any manner provided for in the Act or these Regulations. 21 Nature of relief and grounds for relief [19] It is submitted, as ground for the relief sought by the applicant that, of norm and according to the CIPC, an agent/individual will be disallowed to reserve a company name or apply to incorporate a company name similar to a company name that has already been incorporated in the CIPC office, unless consent was provided in writing by the holding company. To date no-one Dangote Cement South Africa (Pty) Ltd gave permission to Shaheer Noormohamed to register similar names to that of Dangote Cement South Africa (Pty) Ltd, Dangote Dwaalboom Mining (Pty) Ltd or any of its subsidiaries See indexed pp See Regulation 7(3) of the Companies Regulations, See par 6 of the supporting affidavit on indexed p 10. 9

10 [20] The aforementioned is insufficient for determination of this application. Again, in this regard, the application is defective and does not comply with regulation 142(3) of the Companies Regulations, which reads as follows in the material part: 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; and (b) (c) indicate that the order sought; and (d) state the name and address of each person in respect of an order is sought. [underling added for emphasis] [21] Although, the applicant probably has sufficient resources from which it can obtain sound legal advice in this regard, I merely mention for completeness that, the basis for objecting to company names is in terms of the criteria set out in section 11 of the Companies Act. And possible relief that may be obtained and administrative orders that may be granted appear, depending on the circumstances of the particular matter, under section 160(3)(b) of the Companies Act. Conclusion [22] For the abovementioned reasons, this application will fail. But, before I close-out, I cannot help it, but express the following remarks en passant. I cannot understand why the CIPC appears to hold the view that it has no role to play regarding the allegations 10

11 made against Noormohamed. 23 Although, it is not my place, I am of the view that the allegations made against Noormohamed or at least some of them, may be what is contemplated in section 12(6) of the Companies Act to be abuse [of] the name reservation system for the purpose of selling access to names, or trading in or marketing names), and merit attention in terms of the aforementioned subsection and its fellow subsequent subsections. This, in my view, is not ousted by the fact that the applicants already opened a criminal case with the SAPS, 24 as the two processes are not mutually exclusive. I will therefore include as part of the order, but not necessarily a direction to the CIPC in this regard, that the registrar of this Tribunal pass on this decision or at least this part of the decision, to the Commissioner of the CIPC. [23] As for the applicant, if it is so minded or advised, it can initiate the application de novo after attention is, among others, given to what is stated as current deficiencies or defects, above. To avoid doubt, the views expressed herein, are not binding on any of my fellow Tribunal members, who may be seized with any new application that may be brought. Order [24] Therefore, I make an order in the following terms: a) the application is refused; b) the registrar or recording officer of the Companies Tribunal is requested to bring this decision or at least the contents of paragraph 22 hereof to the 23 See par 7 of the investigator s affidavit on indexed p 43. See further par 5 above. 24 See indexed pp 41 and

12 attention of the Commissioner of the Companies and Intellectual Property Commission for possible consideration in terms of the provisions of section 12(6) et seq of the Companies Act 71 of Khashane La M. Manamela Member, Companies Tribunal 29 September