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[2014] ZAGPPHC 376
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Mogale v Mashadi Legal And Financial Services and Others (16954/2014) [2014] ZAGPPHC 376 (9 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
CASE
NO: 16954/2014
DATE:
09 MAY 2014
Ex
parte
RAMKOTANE J MOGALE
APPLICANT
and
MASHADI
LEGAL AND FINANCIAL SERVICES
1
ST
RESPONDENT
THE
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION 2
ND
RESPONDENT
THE
REGISTRAR OF DEEDS,
PRETORIA 3
RD
RESPONDENT
JUDGMENT
KHUMALO J
[1]
The Applicant has brought an
ex parte
application
s
eeking the issuing of a rule nisi calling upon all interested
persons to show cause why an order in the following terms should not
be made:
[1.1]
the registration of Mashadi Legal and Financial Services CC
(2003/010856/23-
“the close corporation”) is restored to
the Close Corporation Register in terms of s 82 (3) and (4) of the
Companies
Act 71 of 2008 (“the Act”);
[1.2]
the close corporation is ordered to submit all forms and annual
returns
of the close corporation, as is required by the
Companies Act
71 of 2008
to the Registrar of Companies within 30 days of this
order;
[1.3]
all and any assets of the close corporation, being the Farm 289,
Portion
6 of the Farm Dwars-In-De-Weg, Registration Division LQ,
Pretoria held under Title Deed Number T35552/2004, is declared to be
no
longer
bona vacantia.
[1.4]
that the rule is to be served on the three (3) Respondents and the
South
African Revenue Services and be published in the Government
Gazette in English and Afrikaans, Sunday Times, an English newspaper
circulating throughout South Africa and in the Rapport an Afrikaans
newspaper circulating throughout the Republic of South Africa.
FACTUAL BACKGROUND
[2] Mashadi Legal and
Financial Services CC is the 1
st
Respondent, the close
corporation that was deregistered on 31 August 2010 after being
placed under provisional deregistration on
1 June 2010 and the
Applicant is its only member.
[3] The Farm 289, Portion
6 of the Farm Dwars-In-De-Weg, Registration Division LQ, Pretoria
held under Title Deed Number T35552/2004,
(“the property”)
is registered under the name of the 1
st
Respondent hence
it became
bona vacantia
. At the time it had only one
asset.
[4] The 2
nd
Respondent, the Companies and Intellectual Property Commission,
responsible for registration and deregistration of companies and
the
3
rd
Respondent, the Registrar of Deeds whose function is
to register immovable properties, are cited as interested parties.
The Applicant
seeks no specific relief from them.
[5] Applicant claims his
explanation for seeking the relief from this court, to be that:
[5.1]
The 2
nd
Respondent is empowered to remove a company from
the register in accordance with the provision of s 82 (3) of the Act.
[5.2]
Any interested person may apply, in the prescribed manner, in
accordance
with the provisions of regulation 40 of the Regulations
published pursuant to the Act, to the 2
nd
Respondent to
reinstate the registration of a company.
[5.3]
The aforesaid Application may, in accordance with the provisions of
Section 82 (4), be launched only in respect of those instances where
the companies were removed from the register as provided for
in terms
of s 82 (3). Such procedure is not available to the Applicant,
because;
[5.4]
it appears from the CIPRO search that the First Respondent omitted to
file annual returns, as a result whereof the deregistration process
commenced on June 2010, with a final deregistration action
recorded
as 31 August 2010.
[5.5]
He cannot file the outstanding documents and statements required to
enable the reinstatement of the 1
st
Respondent by the 2
nd
Respondent,
hence the Application to this court.
[5.6]
It would be just that the registration of the first Respondent be
restored,
so as to enable the 1
st
Respondent to transfer
ownership of the immovable property known as Farm Dwars-In-De-Weg,
that it intends to sell.
[5.7]
Alternatively, at the time that it was deregistered the 1
st
Respondent was in business or operation as envisaged by
s 73
(6) (a)
of the
Companies Act.
[5.8
]
According to Applicant’s investigation, the explanation for the
de-registration
is that:
[5.8.1] 1
st
Respondent’s auditors were MK Dube.
[5.8.2] He
performed various secretarial duties including the lodgment of 1
st
Respondent’s annual returns.
[5.8.3] He being
also a sole member of the 1
st
Respondent, simply omitted
to lodge the annual returns.
[5.8.4] He has not
been able to trace the letter that was sent to the 1
st
Respondent by the Registrar in terms of the provisions of
s 73
(1) of
the
Companies Act, enquiring
whether or not the company was carrying
on business as well as the registered notice in terms of
s 73
(3) to
the effect that 1
st
Respondent would be deregistered.
However does not dispute that the relevant provisions were complied
with by the Registrar.
[6] The Applicant has
signed a sale agreement on 18 August 2013 selling the property for
R1 700 000.00 and alleges that
the 1
st
respondent intends passing transfer to the purchaser but due to
de-registration of the 1
st
Respondent no effect can be
given to the agreement.
[7] Applicant alleges
that 1
st
Respondent will proceed to trade after the
intended sale and to invest the proceeds of the sale. Under the
circumstances it would
be just (as envisaged in s 73 (6) (a) of the
Act that the registration of the 1
st
Respondent be
restored.
[8] It was through his
own bona fide error, not ensuring that the annual returns were
properly filed that the 1
st
respondent was deregistered.
[9] The deregistration of
the 1
st
Respondent was discovered when he approached and
instructed his attorneys with specific instruction to transfer the
property to
the purchaser.
APPLICABLE LAW
[10] Section 82 (3) of
the Act provides for a situation whereby the Commission may remove a
company from the companies register
only if, inter alia, -
(a) the company …,
or-
(i)
has failed to file an annual return in terms of s 33 for two or more
years in
succession;
(ii)
on demand by the Commission, has failed to-
(aa)
to give satisfactory reasons for the failure to file the required
annual returns; or
(bb)
show satisfactory cause for the company to remain registered;
Whilst s 82 (4) provides
that if the Commission de-registers a company as contemplated in the
above subsection (3) any interested
person may apply in the
prescribed manner and form to the Commission, to reinstate the
registration of the company.
[11] The manner
prescribed for the reinstatement of companies that have been
de-registered is provided for under Regulation 40 as
referred to by
the Applicant in subsection (6) and (7) and clearly reads as follows:
“
(6)
The Commission may reinstate a deregistered
company or external
company only after it has filed the outstanding annual returns and
paid the outstanding prescribed fees in
respect thereof.
(7)
An Application to re-instate a de-registered
company or external
company must be made in a Form CoR 40. 5, and must comply with such
conditions as the Commission may determine.”
[12] The regulations are
to be read with the Practice Note 6 of 2012 that was issued in terms
of Regulation 4 of the Regulations
of the Commission that sets out:
Requirements for
reinstatement in terms of the
Companies Act
, 2008 ( Act 71 of 2008)
…
In order to reinstate a
company or close corporation from 1 November 2012, the reinstatement
application on an original signed form
CoR 40.5 must comply with the
following requirements regardless of the cause or date of
deregistration:
.
Certified ID copy of the Applicant (director/member);
.
Certified ID copy of the customer filing the application;
.
Deeds search (reflecting ownership of immovable property or not);
.
Letters from National Treasury and Department of Public Works,
indicating that such Departments
have no objection to the
reinstatement, if it has immovable property;
.
Advertising in the local newspaper giving 21 days’ notice of
proposed application for reinstatement;
.
Affidavit indicating the reasons for the non-filing of annual
returns, if deregistration was due
to non-compliance in relation to
annual returns;
.
Affidavit indicating the reasons for the original request for
deregistration, if the company or
close corporation itself applied
for deregistration; and
.
Sufficient documentary proof indicating that the company or close
corporation was in business or
that it has any outstanding assets or
liabilities (eg. Property, intellectual property rights) at the time
of deregistration.
[13] The challenge
imposed by the Applicant’s Application is that notwithstanding
his indication that he cannot file the outstanding
documents and
statements required to enable the reinstatement of the 1
st
Respondent by the 2
nd
Respondent, which documents are the
relevant annual returns, further that the de-registration indeed
followed the failure to file
the 1
st
Respondent’s
annual statements and admitting that he was the person responsible
and he omitted to do so, Applicant seeks
as per prayer in his notice
of motion
[13.1] the
registration of the 1
st
Respondent to be restored to the
Close Corporation Register in terms of
s 82
(3) and (4) of the
Companies Act 71 of 2008
;
[13.2] the
close corporation to be ordered to submit all forms and annual
returns of the close corporation, as is required
by the
Companies Act
71 of 2008
to the Registrar of Companies within 30 days of this
order;
[14] Applicant has not
cited all the interested parties. The Treasury and Public Works
Departments whose interest the Commission
is supposed to look after
are omitted. Alternatively a letter from the Departments indicating
their approval to the reinstatement
of the property should have been
filed.
[15] Furthermore, the
proceedings contemplated by
regulation 40
that are brought as a
result of s 82 (3) and (4) of the Act are to be brought before the
Commission. The recent deliberations brought
about probably by the
misunderstanding of the Court’s involvement in the
reinstatement of de-registered companies under this
new Act that
transpired in the decisions of
Peninsula Eye Clinic (Pty) Ltd v
Newlands Surgical Clinic (Pty) Ltd
and Others
2012 (4) SA 484
(WCC) at para [6], at p488;
Newlands v Minister of Finance
2013
(5) SA (KZP) at p74 and
Absa Bank v CIPC
2013 (4) SA 194
(WCC)
(full bench) which deliberations ended up with the decision of the
Kwazulu –Natal High Court, Pietermaritzburg,
Nulandis v
Minister of Finance
2013 (5) SA 294
(KZP) at 74 seeking to
differentiate between dissolution and de-registration, are not
necessary for the consideration of this matter.
The Application is
not premised on the provisions of s 83 (4).
[16] Other provisions in
terms of s 73 of the Act that have been referred to in the
Application have got no bearing to the relief
sought by the
Applicant. However if the intention was to refer to s 73 (6) of the
old Act 61 of 1973, it has been repealed.
[17] The Applicant has as
a result failed to make a proper case for the provisional relief that
he is seeking. Under the circumstances,
I make the following order:
[17.1] The Application
for the order as per prayer 1 to 3 of the Notice of motion is
refused.
_________________________
N V
KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
Applicant’s
Counsel: Adv Schoeman
Instructed
by:
Hahn Hahn Attorneys
Pretoria