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[2019] ZAGPPHC 203
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Standard Bank of South Africa Ltd v Companies and Intellectual Property Commission and Others (14056/2019) [2019] ZAGPPHC 203 (10 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case number: 14056/2019
Heard on: 10 June 2019
Date
of judgment: 19 June 2019
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
Applicant
and
COMPANIES
AND INTELLECTUAL
PROPERTY
COMMISSION
1
st
Respondent
THE
SOUTH AFRICAN REVENUE SERVICE
2
nd
Respondent
THE
REGISTRAR OF DEEDS
3
rd
Respondent
JUDGMENT
SWANEPOEL
AJ:
[1]
This is an application in terms of
section 83 (4) (a) of the Companies Act, Act 71 of 2008 ("the
Act"), for an order in
the following terms:
1.1
Declaring the deregistration process
of Smartline Properties CC void in terms of
section 83
(4) (a) of the
Companies Act, 71 of 2008
with retrospective effect;
1.2
Ordering the respondent (sic) to
restore the status of the entity known as Smartline Properties to "in
business" on the
register of companies;
1.3
That the liabilities of Smarline
Properties continue to be enforceable against it with retrospective
effect;
1.4
That all actions taken by applicant
to enforce its rights as creditor of Smarline Properties during the
period of dissolution be
validated;
1.5
Declaring that any proceedings may
be taken against Smarline Properties as might have been taken if
Smarline Properties had not
been dissolved;
1.6
Directing that the 1st Respondent
shall not alter the registration status of Smarline Properties on its
records to reflect "deregistration
process" or
"deregistered" or finally registered until such time that
another court directs otherwise.
[2]
The background to the matter is,
briefly, that Smartline is one of two trustees of the Valeo
Investment Trust ("the trust").
It has failed to submit
regular annual returns to 1st Respondent, as a result of which 1
st
Respondent has commenced the process of deregistering the
corporation. The process has not yet been finalised, and the
corporation
is not yet deregistered. Applicant has also applied to
1
st
Respondent for the reinstatement of the corporation in terms of the
provisions of section 82 (4) of the Act.
[3]
Applicant is a creditor of the trust,
and seeks to issue summons against the trust in order to recover the
debt. In order to sue
the trust, applicant has to cite its trustees.
Should Smartline Properties be dissolved, it could not be cited in
the action.
[4]
Section 83 (4) reads as follows:
"(4)
At any time after a company has been dissolved-
(a)
The liquidator of the company, or
other 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 and equitable in the circumstances; and
(b)
If the court declares the
dissolution to have been void, any proceedings may be taken against
the company
as
might
have been taken if the company had not been dissolved."
[5]
The matter came before me on an
unopposed basis. I have had the advantage of reading applicant's
heads of argument (for which I
wish to thank counsel) and the
applicable authorities, and although it seems that a Court has
extensive discretion to grant whatever
order is just in the
circumstances, in each of the reported cases the company that was
sought to be reinstated had already been
deregistered.
(See:
ABSA Bank Ltd v Companies and
Intellectual Property Commission of SA and others (2013) 3 ALL SA
(WCC); Morgenrood v Companies and
Intellectual Property Commission
and others (2015) ZAGPPHC 294 (12 March 2015); Nulandis v Minister of
Finance
2013 (5) SA 294
(KZP); Missouri Trading
CC
and another v ABSA Bank Ltd
and others)
[6]
The provisions of section 83 (4) (a) are
clear, that the application for reinstatement of the company may only
be brought after
dissolution has occurred. Therefore it follows that
I cannot grant an order reinstating Smarltine Properties because on
applicant's
own papers it has not yet been dissolved. Applicant says
that what it seeks is to have the deregistration process and
Smartline's
eventual dissolution declared void. That is not what is
provided for in section 83 (4) (a).
[7]
What applicant actually seeks, in my
view, is an interdict preventing Smarline's deregistration, and
preventing the 151 Respondent
indefinitely from changing Smartline
Properties' status. The Act does not make provision for such an
order, nor do applicant's
papers make out a case for what would
amount to an anticipatory interdict. In the premises I make the
following order:
7.1
The application is
dismissed.
J.J.C. Swanepoel
Acting Judge of the High Court,
Gauteng Division, Pretoria