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[2011] ZAGPPHC 154
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Valley View Homeowners' Association v Universal Pulse Trading 27 (Pty) Ltd (70639/2010) [2011] ZAGPPHC 154 (13 May 2011)
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO. 70639/2010
DATE:13/05/2011
On the 13
th
day of May 2011
Before the Honourable Kemack AJ
In the matter between:-
VALLEY VIEW HOMEOWNERS'
ASSOCIATION.........................................................Applicant
and
UNIVERSAL PULSE TRADING 27 (PTY)
LIMITED................................................ Respondent
JUDGMENT
1. This is a reserved judgment in an unopposed application which came before
this court on 9 May 2011, after the commencement of
the new
Companies Act 71 of
2008
("theCompanies Act"). The application was issued on 26 November 2010, prior
to the revocation of the previous Companies Act 61 of
1972 ("the previous
Acf).
2. The applicant seeks an order finally winding-up the respondent, a
provisional winding-up order having been granted on 8 March 2011.
3. The first annexure to the applicant's founding affidavit is a Windeed
Companies' Office enquiry dated 4 November 2010, utilised
by the applicant to
prove the location of the respondent's registered office. This document also
shows that the respondent was deregistered
by the Registrar of Companies in
terms of section 73(5) of the previous Act on 16 July 2010, prior to the issuing
of the application.
4. On behalf of the applicant, Mr. Higgins submitted that the prior
deregistration of the respondent does not prevent the applicant
applying for,
and the court granting, a winding-up order.
5. The Companies Act came into effect on 1 May 2011. In terms of section
224(1) of the Companies Act: "the Companies Act, 1973 (Act
no. 61 of 1973), is
hereby repeated, subject to sub-section (3)". Section 224(3) states: "the repeal
of the Companies Act, 1973....does
not affect the transitional arrangements,
which are set out in Schedule 5". Section 10 of Schedule 5 states: "any
proceedings in
any court in terms of the previous Act immediately before the
effective date are continued in terms of that Act as if it had not
been
repealed' Accordingly, the previous Act applies to this application.
6. The respondent was deregistered under section 73(5) of the previous Act,
which states that "the Registrar may, unless good cause
to the contrary has been
shown by the company, deregister the company concerned'.
7. The proposition that it is possible to wind-up a deregistered company
requires an examination of the differing nature and consequences
of
deregistration and winding-up.
8. In 4 (Part 3) LAWSA 98 Blackman defines winding-up or liquidation as "the
process by which, prior to its dissolution, the management
of a company's
affairs is taken out of its directors' hands, its assets are ascertained,
realized and applied in payment of its creditors
according to their order of
preference, and any residue distributed amongst its members according to their
rights. The company's
corporate existence is then put to an end by the format
process of dissolution".
9. The consequences of deregistration are materially different. In R
Miller v Nafcoc Investment Holding Company Ltd
2010 [4] All SA 44 (SCA)
at para 11, Cloete JA, states that deregistration "pufs an end to the existence
of the company, its corporate
personality ends in the same way that a natural
person ceases to exist on death". As is confirmed in
Suid-Afrikaanse
Nasionaie Lewensassuransie-Maatskapy v Rainbow Diamonds (Edms.) Bpk
1984 (3)
SA 1
(A) at 10-12, on deregistration all a company's property, whether movable
or immovable, corporeal or incorporeal, automatically becomes
property owned by
the State as bona vacantia.
10. Referring to the previous Act, Blackman points out that deregistration in
terms of section 73 is to be distinguished from dissolution
in terms of section
419 of a company following its winding-up, although each leads to the cessation
of the existence of the company
as a legal persona as held in
Ex parte
Jacobson: in re Alec Jacobson Holdings (Ptv) Ltd
1984 (2) SA 372
(W) at
376-377.
11. Sections 82 and 83 of the Companies Act deal with deregistration. Section
83(1) goes further than section 73 of the previous Act,
by expressly stating
that "a company is dissolved as of the date its name is removed from the
Companies register".
12. Thus a company's existence as a corporate persona ends on deregistration,
and it becomes incapable of retaining ownership of any
of its assets, all of
which pass into the ownership of the State. On deregistration there remains
neither a corporate entity capable
of being placed in the hands of a liquidator,
nor any assets to be realised by a liquidator for the purpose of distributing
the proceeds
to creditors.
13. Self-evidently there cannot be a winding-up and subsequent liquidation of
assets of a company which has simultaneously ceased
to exist and transferred
ownership of all its assets to the State.
14. The applicant is not without a remedy for this situation. Section
73(6)(a) of the previous Act and sections 82(4) and 83(4) of
the current
Companies Act, provide procedures for the restoration or reinstatement of a
deregistered company's registration.
15. Accordingly, the applicant will be able to apply for the winding-up of
the respondent after successfully utilising the procedures
for reinstating the
registration of the respondent. The applicant cannot, however, apply for a
winding-up order without first procuring
the reinstatement of the registration
of the respondent. For these reasons, the provisional winding-up order is
discharged.
Kemack AJ