IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA In the matter between: CASE NO: CT004AUG2017 BOLLORE AFRICA LOGISTICS SOUTH AFRICA (PTY) LTD Applicant (Registration Number: 2012/013416/07) and BOLLORE IMPORT EXPORT (PTY) LTD First Respondent (Registration Number: 2015/321675/07) BOLLORE TRADING AND INVESTMENTS (PTY) LTD Second Respondent (Registration Number: 2015/059767/07) Issue(s) for determination: This is an objection to the registration of the company names Bollore Import Export (Pty) Ltd and Bollore Trading and Investments (Pty) Ltd in terms of sections 11 and 160 of the Companies Act, 2008 (Act No. 71 of 2008) read with regulations 13 and 142 of the Companies Regulations, 2011. Coram: Lindelani Daniel Sikhitha Decision handed down on 02 December 2017 DECISION (Reasons and Order) Page 1 of 24
INTRODUCTION [1] The Applicant in this matter is Bollore Africa Logistics South Africa (Pty) Ltd, with Registration Number: 2012/013416/07 which is a private company duly incorporated and registered in accordance with the company laws of the Republic of South Africa. The Applicant s registered address is situated at 5 Estee Ackerman Street, South Lake Office Park, Jet Park Extension 62, Boksburg, Gauteng Province, Republic of South Africa, 1469. [2] The First Respondent in this matter is Bollore Import Export (Pty) Ltd with Registration Number: 2015/321675/07, which is a private company duly incorporated and registered in accordance with the company laws of the Republic of South Africa. The First Respondent s registered address is situated at Shop 14, Albertina Sisulu and 9 Avenue, Maraisburg, Gauteng Province, Republic of South Africa, 1709. The First Respondent was registered on the 08 th day of September 2015. 1 [3] The Second Respondent in this matter is Bollore Trading and Investments (Pty) Ltd with Registration Number: 2015/059767/07, which is a private company duly incorporated and registered in accordance with the company laws of the Republic of South Africa. The Second Respondent s registered address is situated at 2 Brahms Street, Vanderbijl Park, Gauteng Province, Republic of South Africa, 1 Refer to a copy of First Respondent s Disclosure Certificate: Companies and Close Corporations issued by the Commissioner of Companies & Intellectual Property Commission on 05 May 2017 at 14:37 which appears at page 25 of the indexed and paginated Bundle of Documents. Page 2 of 24
1911. The Second Respondent was registered on the 24 th day of February 2015. 2 [4] This is an application in terms of which the Applicant objects to the registration of the company names Bollore Import Export (Pty) Limited and Bollore Trading and Investments (Pty) Limited in terms of sections 11 and 160 of the Companies Act, 2008 (Act No. 71 of 2008) ( the Act ) read together with Regulations 13 and 142 of the Companies Regulations, 2011 ( the Regulations ). [5] In essence, the Applicant is seeking a determination by the Companies Tribunal in respect of the registration of the names Bollore Import Export (Pty) Limited and Bollore Trading and Investments (Pty) Limited. In short, it is the Applicant s contention that the use of the word BOLLORE in the company names of the First and Second Respondents offends and contravenes the requirements of section 11(2) of the Act. [6] I took particular consideration, as I am obliged to do so, of the fact that the Applicant filed an Application for Relief (Form CTR 142) with the Companies Tribunal on the 04 th day of August 2017. 3 [7] The Applicant brought an Application for a Default Order (Form CTR 145) in terms of Regulation 153 of the Regulations. 4 I will deal with the issues regarding the 2 Refer to a copy of Second Respondent s Disclosure Certificate: Companies and Close Corporations issued by the Commissioner of Companies & Intellectual Property Commission on 05 May 2017 at 14:38 which appears at page 26 of the indexed and paginated Bundle of Documents. 3 A copy of Form CTR 142 appears at page 8 of the indexed and paginated Bundle of Documents. 4 A copy of Form CTR 145 appears at page 1 of the indexed and paginated Bundle of Documents. Page 3 of 24
Application for Default Order when I deal with the procedural aspects of the current application below. BACKGROUND AND COMPLIANCE WITH PROCEDURAL MATTERS [8] In terms of Regulation 142(1) of the Companies Regulations, 2011 ( the Regulations ), a person may apply to the Companies Tribunal for an order in respect of any matter contemplated by the Companies Act, 2008 (Act No. 71 of 2008) ( the Act ) or the Regulations by completing and filing with the Companies Tribunal s recording officer: 8.1 an Application in Form CTR 142; and 8.2 a supporting affidavit setting out the facts on which the application is based. [9] The current Application together with the Affidavit ( the Supporting Affidavit ) deposed to by Cornelia Carolina Coetzee in terms of sections 11 and 160 of the Act read together with Regulations 13 and 142 of the Regulations was filed with the Companies Tribunal on the 04 th day of August 2017. 5 [10] In terms of Regulation 142(2) of the Regulations, the Applicant is required to serve a copy of the Application and supporting affidavit on each respondent cited in the Application, within 5 business days after filing it with the Companies Tribunal. 5 Refer to stamped copy of the Application for Relief dated 19 July 2017 which appears at page 8 of the Bundle of Documents. Page 4 of 24
[11] It appears from the papers placed before the Companies Tribunal that the current Application was served upon the First Respondent on the 07 th day of August 2017 at 16:00 at Shop 14, Albertina Sisulu & 9 th Avenue, Maraisburg, Roodepoort by affixing it to the principal door at the First Respondent s registered address. 6 [12] It further appears from the papers placed before the Companies Tribunal that the current Application was served upon the Second Respondent and received by its Bookkeeper Mrs Nathalie Vasilas on the 10 th day of August 2017 at 16:21 at 2 Brahms Street, Vanderbijl Park. 7 [13] I am satisfied that the application in this matter was properly served upon the First and Second Respondents in the manner that had been fully outlined in the Sheriffs Returns of Service. [14] Consequently I am satisfied that the current Application is in substantial compliance with Regulation 142 of the Regulations. [15] In terms of Regulation 143(1) of the Regulations, a respondent who wishes to oppose the complaint or application must serve a copy of answer on the initiating party and file the answer with proof of service thereof with the Companies Tribunal within twenty (20) business days after being served with a complaint referral, or an application, that has been filed with the Companies Tribunal. 8 6 Refer to a copy of the Sheriff s Return of Service which appears at pages 134 to 136 of the indexed and paginated Bundle of Documents. 7 Refer to a copy of the Sheriff s Return of Service which appears at pages 138 to 140 of the indexed and paginated Bundle of Documents. 8 Regulation 143(1) of the Regulations reads as follows: Within 20 business days after being served with a Complaint Referral, or an application, that has been filed with the Tribunal, a respondent who wishes to oppose the complaint or application must (a) serve a copy of an Answer on the initiating party; and (b) file the Answer with proof of service. Page 5 of 24
[16] It follows therefore that the First and Second Respondents were required to serve copies of their answers on the Applicant and file their answers with proofs of service on the Applicant with the Companies Tribunal within twenty (20) business days in terms of Regulation 143(1) of the Regulations. [17] Upon proper calculation of the time frames in terms of Regulations 143(1) of the Regulations: 17.1 the First Respondent was required and had failed to serve on the Applicant and to file with the Companies Tribunal a copy of its answer to the current Application together with proof of service on the Applicant on or before the 5 th day of September 2017. As at the date of the filing of the Application for the Default Order in this matter, the First Respondent has still not served on the Applicant and filed with the Companies Tribunal a copy of its answer together with proof of service on the Applicant as prescribed by Regulation 143(1) of the Regulations. 17.2 the Second Respondent was required and had failed to serve on the Applicant and to file with the Companies Tribunal a copy of its answer to the current Application together with proof of service on the Applicant on or before the 8 th day of September 2017. As at the date of the filing of the Application for the Default Order in this matter, the Second Respondent has still not served on the Applicant and filed with the Companies Tribunal a copy of its answer together with proof of service on the Applicant as prescribed by Regulation 143(1) of the Regulations. Page 6 of 24
[18] As a result of the First and Second Respondents failure to serve on the Applicant and file with the Companies Tribunal copies of their answers together with proofs of service on the Applicant with the Companies Tribunal, the Applicant was entitled to file the Application for Default Order, in terms of Regulation 153(1) of the Regulations, with the Companies Tribunal. [19] The Companies Tribunal is therefore enjoined to consider the Application for Default Order in line with the provisions of Regulation 153(2) of the Regulations. It is important that I should make reference to the provisions of Regulation 153(1) and (2) of the Regulations which read as follows: (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. [20] The Applicant did indeed proceed to file its Application for Default Order (Form CTR 145) in terms of Regulation 153 of the Regulations on the 02 nd day of November 2017. [21] In terms of the Affidavit in support of the Application for Default Order deposed to by Cornelia Carolina Coetzee dated 31 October 2017, the Applicant makes the following allegations which are considered to be relevant to the current Application: Page 7 of 24
21.1 The Applicant brought an Application before the Companies Tribunal in terms of section 160 of the Act and Regulation 142 of the Regulations on the 04 th day of August 2017; 21.2 In the aforesaid Application the Applicant contends that the use of the word BOLLORE in the company names of the First and Second Respondents contravenes the requirements of section 11(2) of the Act; 21.3 Pursuant to the Companies Tribunal issuing the Application and allocating case number, copies of the application were delivered to the relevant sheriffs for services upon the First and Second Respondents; 21.4 The sheriff duly served a copy of the Application upon the First Respondent at its registered address on the 07 th day of August 2017 9 ; 21.5 The Sheriff duly served the Application upon the Second Respondent at its registered address on the 10 th day of August 2017 10 ; 21.6 In addition, the Application was sent to the First and Second Respondents by registered mail on the 08 th day of August 2017 11 ; 21.7 In terms of Regulation 143 of the Regulations, the First and Second Respondents were required to serve a copy of their answers on the Applicant and file their answers thereof with proof of service on the Applicant with the Companies Tribunal within 20 business days after being served with the Application; 9 Refer to a copy of the Sheriff s Return of Service which appears at pages 134 to 136 of the indexed and paginated Bundle of Documents. 10 Refer to a copy of the Sheriff s Return of Service which appears at pages 138 to 140 of the indexed and paginated Bundle of Documents. 11 Refer to copies of Registered Letter slips which appears at pages 143 to 144 of the indexed and paginated Bundle of Documents. Page 8 of 24
21.8 The First Respondent was required to serve its answer and file its answer thereof with proof of service on the Applicant with the Companies Tribunal by 05 September 2017; and 21.9 The Second Respondent was required to serve its answer and file its answer thereof with proof of service on the Applicant with the Companies Tribunal by 07 September 2017. 12 [22] It is alleged by the Applicant that both the First and Second Respondent failed to file their answers and thereby displaying no interest in opposing the current Application. 13 [23] Upon careful consideration of the Application for Default Order that had been placed before me, I am satisfied that it had been filed with the Companies Tribunal in compliance with the provisions of Regulation 153(1) and (2) of the Regulations as outlined above. I am therefore bound to consider the current Application for Default Order. APPLICABLE LAW [24] The jurisdiction of the Companies Tribunal to deal with the current Application is to be found through conducting a thorough examination of the papers placed before me in this matter. Such a process also requires me to examine the applicable provisions of the Act. 12 Refer to paragraphs 5 to 18 which appear at pages 3 to 5 of the Affidavit in Support of Default Order deposed to by Cornelia Carolina Coetzee. 13 Refer to paragraphs 17 to 18 which appear at page 5 of the Affidavit in Support of Default Order deposed to by Cornelia Carolina Coetzee. Page 9 of 24
[25] In terms of paragraphs 6 and 7 of the Supporting Affidavit, the Applicant objects to the registration of the company names Bollore Import Export (Pty) Ltd and Bollore Trading and Investments (Pty) Ltd. Based on my reading of the papers placed before me, the Applicant is making such an objection in terms of sections 11 and 160 of the Act read with Regulations 13 and 142 of the Regulations. [26] As part of my analysis of the information pertinent to this matter, it is imperative that I must deal with the provisions of the Act and Regulations referred to above. [27] The relevant parts of section 11(2)(a), (b) and (c) of the Act reads as follows: (2)(a) (i) (ii) (iii) (iv) The name of a company must not be the same asthe name of another company, domesticated company, registered external company, close corporation or co-operative; a name registered for the use of a person, other than the company itself or a person controlling the company, as a defensive name in terms of section 12(9), or as a business name in terms of the Business Names Act, 1960 (Act No. 27 of 1960), unless the registered user of that defensive name or business name has executed the necessary documents to transfer the registration in favour of the company; a registered trade mark belonging to a person other than the company, or a mark in respect of which an application has been filed in the Republic for registration as a trade mark or a well-known trademark as contemplated in section 35 of the Trade Marks Act, 1993 (Act No. 194 of 1993), unless the registered owner of that mark has consented in writing to the use of the mark as the name of the company; or a mark, word or expression the use of which is restricted or protected in terms of the Merchandise Marks Act, 1941 (Act No. 17 of 1941), except to the extent permitted by or in terms of that Act; Page 10 of 24
(c) (b) not be confusingly similar to a name, trade mark, mark, word or expression contemplated in paragraph (a) unless - (i) in the case of names referred to in paragraph (a)(i), each company bearing any such similar name is a member of the same group of companies; (ii) in the case of a company name similar to a defensive name or to a business name referred to in paragraph (a)(ii), the company, or a person who controls the company, is the registered owner of that defensive name or business name; (iii) in the case of a name similar to a trade mark or mark referred to in paragraph (a)(iii), the company is the registered owner of the business name, trade mark or mark, or is authorised by the registered owner to use it; or (iv) in the case of a name similar to a mark, word or expression referred to in paragraph (a)(iv), the use of that mark, word or expression by the company is permitted by or in terms of the Merchandise Marks Act, 1941; not falsely imply or suggest, or be such as would reasonably mislead a person to believe incorrectly, that the company- (i) is part of, or associated with, any other person or entity. [28] Section 160(1) of the Act grants a right to interested parties to bring application of this nature for determination by the Companies Tribunal. The relevant parts of section 160(1) of the Act read as follows: (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 Page 11 of 24
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. [29] Before dealing with the merits and/or demerits of the current application, it is important that I should quickly deal with some preliminary issues which relates to the form that the current application should comply with. My expedition must therefore begin with me first having a look at the provisions of Regulation 13(a) which deals with the form of the applications of this nature to determine if the current Application is in compliance thereof. The relevant parts of Regulation 13(a) read as follows: (a) A person may apply in Form CTR 142 to the Tribunal in terms of section 160 if the person has received a Notice of a Potentially Contested Name, in Form CoR 9.6 or a Notice of a Potentially Offensive Name, in Form CoR 9.7, or has an interest in the name of a company as contemplated in section 160(1). [30] The current application is contained in Form CTR 142 (Application for Relief) and it is supported by an affidavit (the Supporting Affidavit). I am therefore satisfied that the current application does comply with Regulation 13(a) of the Regulations as outlined above. [31] It is also important that I should also make reference to section 160(2) of the Act which reads as follows: (2) An application in terms of subsection (1) may be made- Page 12 of 24
(a) within three months after the date of a notice contemplated in subsection (1), if the applicant received such a notice; or (b) on good cause shown at any time after the date of the reservation or registration of the name that is the subject of the application, in any other case. [32] It is common cause that the First Respondent was registered on the 08 th day of September 2015 14 and the Second Respondent was registered on the 24 th day of February 2015 15. [33] As I have already pointed out above, the current Application was only filed with the Companies Tribunal on the 04 th day of August 2017. Upon closer look and proper calculations of the days in terms of section 160(2)(a) of the Act, the aforesaid date clearly falls outside the three months as stipulated therein. [34] The current Application was therefore filed late with the Companies Tribunal. It follows therefore that in order to succeed with the current Application the Applicant is required to show good cause as prescribed by section 160(2)(b) of the Act as to why its Application should be entertained by the Companies Tribunal. [35] It is important for me to begin the exercise of determining as to whether the Applicant had succeeded in showing good cause to explain the delay in filing the current Application by unpacking the essential requirements of good cause 14 Refer to a copy of First Respondent s Disclosure Certificate: Companies and Close Corporations issued by the Commissioner of Companies & Intellectual Property Commission on 05 May 2017 at 14:37 which appears at page 25 of the indexed and paginated Bundle of Documents. 15 Refer to a copy of Second Respondent s Disclosure Certificate: Companies and Close Corporations issued by the Commissioner of Companies & Intellectual Property Commission on 05 May 2017 at 14:38 which appears at page 26 of the indexed and paginated Bundle of Documents. Page 13 of 24
which the Applicant is required to show in terms of the provision of section 160(2)(b) of the Act. SECTION 160(2)(b) GOOD CAUSE [36] Our courts have had countless opportunity to determine the issue of good cause in terms of their rules of their processes and procedure and I consider same to be relevant for purposes of the current exercise. In Colyn v Tiger Food Industries, Jones AJA had the following to say regarding the essential requirements to show good cause in relation to an application for rescission of default judgment, which in my view are also relevant to the current application: [11] The authorities emphasize that it is unwise to give a precise meaning to the term good cause. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait: When dealing with words such as "good cause" and "sufficient cause" in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns' Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352-3). The Court's discretion must be exercised after a proper consideration of all the relevant circumstances. Page 14 of 24
With that as the underlying approach the courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiff's claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd, HDS Construction (Pty) Ltd v Wait supra, Chetty v Law Society, Transvaal.). 16 [37] The principles governing the requirement for granting or refusal of condonation applications are well established in our law. In terms of these principles the court or a tribunal has a discretion which is to be exercised judicially after taking into account all the facts before it. The factors which the court takes into consideration in assessing whether or not to grant a condonation application placed before it are the following: 37.1 the degree of lateness or non-compliance with the prescribed time frame; 37.2 the explanation for the lateness or the failure to comply with time frames; 37.3 prospects of success or bona fide defense in the main case; 37.4 the importance of the case; 37.5 the respondent s interest in the finality of the judgement; 37.6 the convenience of the court; and 37.7 avoidance of unnecessary delay in the administration of justice. 17 16 See Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape (127/2002) [2003] ZASCA 36; [2003] 2 All SA 113 (SCA) (31 March 2003). 17 Kritzinger v Commission for Conciliation, Mediation and Arbitration and Others (JR 2254/05) [2007] ZALC 85 (9 November 2007) at para [10]. Page 15 of 24
[38] As Molahlehi J stated in Kritzinger v CCMA & Others, 18 the aforementioned factors are not individually decisive but are interrelated and must be weighed against each other. In weighing the aforementioned factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly strong prospects of success may compensate the inadequate explanation and the long delay. [39] In an application for condonation in terms of section 160(2)(b) of the Act, good cause is shown by the Applicant giving an explanation that shows how and why the late filing of the current Application occurred. [40] There is authority that the Companies Tribunal could decline the granting of the application for condonation if it appears that the late filing of the Application was wilful or was due to gross negligence on the part of the Applicant. In fact the Companies Tribunal could on this ground alone decline to grant an indulgence to the Applicant. Prospects of success or bona fide defence on the other hand mean that all what needs to be determined is the likelihood or chance of success when the main case is heard. 19 [41] It is my view that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. It has also been held by the courts that the applicant should bring the application for condonation as soon as it becomes aware of the lateness 18 Ibid at para [11]. 19 See Saraiva Construction (PTY) Ltd v Zulu Electrical and Engineering Wholesalers (PTY) Ltd 1975 (1) SA 612 (D) and Chetty v Law Society 1985 (2) SA at 765A-C. Page 16 of 24
of its case. 20 [42] In my view, proper explanation entails an explanation by the Applicant for each period of the delay and the disclosure of all the details relevant to the delay. In explaining why the delay, the Applicant need to include the stage at which it became aware of the lateness in the referral of the current Application. If the Application was not made immediately or soon after becoming aware of the lateness the Applicant need to provide an explanation for that. And more importantly the Applicant needs to take the Companies Tribunal into its confidence with regard to all facts which are relevant to the determination of its Application. [43] I should therefore proceed to examine the papers placed before me to determine whether the Applicant did indeed succeed in showing good cause in order for its Application to be entertained by the Companies Tribunal. [44] In terms of section 160(2)(b) of the Act, the Applicant just like any other person and at any time is allowed to bring an application to the Companies Tribunal on good cause shown in the prescribed manner and form for a determination whether the name of a company satisfies the requirements of the Act. [45] In Highly Nutrious Food Company (Pty) Ltd v Companies Tribunal and Others, 21 Twala J held that section 160(2)(b) does not refer only to the delay in bringing the application but to show good cause as to why the application must be entertained. According to him, this section therefore requires the Applicant to furnish a 20 See Melane v Santam Insurance Co Ltd, 1962 (4) SA 531 (A) at 532C-F. 21 See Highly Nutrious Food Company (Pty) Ltd v Companies Tribunal and Others (Case Number: 91718/2016), Gauteng Division, Pretoria (dated 22 September 2017) at para [18] (unreported). Page 17 of 24
reasonable explanation for the delay in filing its Application with the Companies Tribunal as well as a reasonable explanation as to why the current Application should be entertained by the Companies Tribunal. In other words, this section does not only require an explanation as to the delay in bringing the Application but also require an explanation with regard to the merits of the Application as well. I am inclined to agree with the interpretation given to section 160(2)(b) of the Act by Twala J as outlined above. [46] It has already been established that the First Respondent was registered on the 08 th day of September 2015 and that the Second Respondent was registered on the 24 th day of February 2015. [47] In paragraph 19 of the Affidavit in Support of Application for Default Order, the Applicant alleges that it received notice issued by the Companies and Intellectual Property Commission confirming that the Second Respondent had changed its name to UPPER HEDGE (PTY) LTD. The Applicant is therefore no longer seeking any relief against the Second Respondent as, according to the Applicant, the Second Respondent is no longer in contravention of the requirements of section 11(2) of the Act. 22 [48] The Applicant is therefore only bringing the Application for Default Order in terms of Regulation 153 of the Act against the First Respondent and the terms of such 22 Refer to paragraphs 19 to 20 of the Affidavit in Support of Application for Default Order which appear at pages 5 to 6 of the indexed and paginated Bundle of Documents. Page 18 of 24
order are outlined in paragraph 21 of the Affidavit in Support of Application for Default Order. 23 [49] Be that as it may, the Applicant is therefore required to show good cause for the period of delay which occurred between 08 September 2015, being the First Respondent s registration date and 04 August 2017, being the date when the current Application was filed with the Companies Tribunal. I will therefore proceed to analyze the papers placed before me to determine whether the Applicant succeeded in showing good cause for the delay in bringing the current Application in so far as the First Applicant is concerned. [50] In terms of paragraphs 35 to 43 of the Supporting Affidavit, the Applicant made the following allegations in an attempt to show good cause for the delay in bringing the current Application: 50.1 The First Respondent was registered in 2015. This Application does not fall within section 160(2)(a) of the Act because the Applicant did not receive a notice contemplated in of section 160(1). 50.2 In May 2016, a subsidiary of the Bollore group made application to Companies and Intellectual Property Commission ( the CIPC ) to change its company name. In the course of that process, the deponent to the Supporting Affidavit was advised by the CIPC of the fact of the First and 23 Refer to paragraph 21 of the Affidavit in Support of Application for Default Order which appears at page 6 of the indexed and paginated Bundle of Documents. Page 19 of 24
Second Respondents existence. It is alleged that this was the first time that the deponent learnt of the existence of the First Respondent. 50.3 The deponent made arrangements for an investigation to be conducted into these two entities in order to establish their whereabouts, the nature of their business and who the persons involved with these entities were, in order for a decision to be taken regarding the way forward. 50.4 Other than learning that the Second Respondent was ostensibly a shelfcompany intended to hold properties, nothing meaningful was learnt concerning the First Respondent other than the information which would be gleaned from the CIPC registry of companies. 50.5 The Applicant then consulted its attorneys who, on its behalf, sent the demand to the First Respondent. 24 50.6 Pursuant to obtaining board approval on a group, international level and in June 2017, the Applicant instructed its attorneys to bring the current Application. 50.7 Counsel was briefed in this regard, whereat counsel recommended that further information be collated for the purpose of the current Application. 50.8 The task having been completed, counsel was furnished with further instructions in July 2017 and duly settled the current Application. 24 Refer to a copy of the Letter of Demand sent by registered mail to the First Respondent s director dated 27 July 2016 which appears at pages 27 to 31 as well as pages 54 to 58 of the indexed and paginated Bundle of Documents. Page 20 of 24
50.9 There has therefore been no undue delay by the Applicant since first learning of the First Respondent s name. [51] It is clear from First Respondent s Disclosure Certificate: Companies and Close Corporations that the First Respondent was registered on the 08 th day of September 2015. [52] It follows therefore that the Applicant had until 08 December 2015 to file the current application in terms of section 160(2)(a) of the Act but same was not done. For that reason, the Applicant is required to explain the delay in filing the current Application and to further show good cause as to why its application should be entertained by the Companies Tribunal. [53] It is my considered view that the explanation for the delay and information to show good cause is of fundamental importance when dealing with applications similar to the current Application. This will enable me to determine whether the Applicant did succeed in showing good cause for the late filing of the current Application and further for the Companies Tribunal to entertain the current Application. [54] Save to state that the deponent (indirectly the Applicant) become aware of the existence of the First Respondent in May 2016, the Applicant failed to provide to the Companies Tribunal further details regarding the exact date when it actually became aware of the existence of the First Respondent. [55] It is my view that if the delay only relates to the period between 05 May 2016 and 06 August 2016 I was going to be inclined to grant condonation for the delay which occurred due to the fact that the Applicant caused a letter of demand to be Page 21 of 24
issued to the First Respondent on its behalf and based on the explanation given for the period between 05 May 2016 and 27 July 2016. [56] I am however not satisfied that the Applicant had succeeded in providing a reasonable explanation for the delay for the period between 06 August 2016 and 04 August 2017. There is no attempt by the Applicant to provide any explanation to the Companies Tribunal as to why the current Application was only filed with the Tribunal on 04 August 2017 when the Applicant became aware of the existence of the First Respondent on 05 May 2016, sent a letter of demand on 27 July 2016 and despite having threatened to bring an urgent application against the First Respondent in terms of paragraph 9 of its letter of demand should the First Respondent fail to comply with the Applicant s demand. 25 [57] It is clear from the papers placed before me that the Applicant did send a letter of demand by registered mail to the director of the First Respondent, being Ms. Rebecca Gazi to the following address: 603C Phiri, Tshiawelo, Carltonville, North West. In terms of paragraph 8 read with paragraph 11 of the aforesaid letter of demand the First Respondent had until 06 August 2016 to comply with the Applicant s demand contained in paragraph 8. 26 [58] There has been no attempt by the Applicant to explain the delay which took place between 06 August 2016 and 04 August 2017. Such delay is too long and an explanation regarding such delay is of critical importance to enable me to make 25 Refer to a copy of First Respondent s Disclosure Certificate: Companies and Close Corporations issued by the Commissioner of Companies & Intellectual Property Commission on 05 May 2017 at 14:37 which appears at page 25 of the indexed and paginated Bundle of Documents. 26 Refer to paragraphs 8 and 11 of the Letter of Demand dated 27 July 2017 which appear at pages 30 and 31 as well as pages 57 and 58 of the indexed and paginated Bundle of Documents. Page 22 of 24
an informed determination on whether or not the Applicant succeeded in showing good cause for the delay in filing the current Application. [59] The allegations about the board approval on a group, international level being obtained in June 2017, in my view, clearly point to the tardiness on the part of the Applicant and its international masters in dealing with its objection against the use of the First Respondent s name. There is no explanation as to why the approval from the international board of the Applicant was only obtained in June 2017. Such explanation is critical for purposes of my determination regarding the showing of good cause demanded from the Applicant in terms of section 160(2)(b) of the Act. I am surprised that the Applicant never saw it fit to provide such an explanation to the Companies Tribunal. [60] In my view, the Applicant is required to give proper explanation for the delay in bringing the current Application. More importantly the Applicant must provide an explanation for the delay which occurred between the period 06 August 2016 and 04 August 2017. A proper explanation which is required in this regard entails an explanation by the Applicant for each period of the delay and the disclosure of all the details relevant to the delay. In explaining why the delay, the Applicant need to include the stage at which it became aware of the lateness in the referral of the current Application. [61] Due to the fact that the current Application was not made immediately or soon after becoming aware of the lateness the Applicant is therefore required to provide an explanation for such delay. And more importantly the Applicant is required to take the Companies Tribunal into its confidence with regard to all facts Page 23 of 24
which are relevant to the determination of its Application for condonation for the late filing of its Application. [62] The Applicant is further required but it failed to show good cause as to why its Application should be entertained by the Companies Tribunal at this late stage. [63] I am therefore persuaded to dismiss the Application on the ground that the Applicant failed to provide a reasonable explanation for the delay in filing the current Application. Similarly I am persuaded to dismiss the Application on the further ground that the Applicant failed to show good cause as to why its Application should be entertained by the Companies Tribunal in terms of section 160(2)(b) of the Act. [64] The Application is accordingly dismissed. LINDELANI DANIEL SIKHITHA Member of the Companies Tribunal 02 December 2017 Page 24 of 24