EGL Eagle Global Logistics (South African Proprietary) Limited v Eagle Logistics CC and Another (37053/07) [2008] ZAGPHC 160 (6 June 2008)

29

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

(PRETORIA)

Case no. 37053/07

Judgment reserved on 14 May 2008

Judgment handed down on: 06 June 2008

EGL EAGLE GLOBAL LOGISTICS

(SOUTH AFRICAN PROPRIETARY) LTD Applicant

and

EAGLE LOGISTICS CC First Respondent

THE REGISTRAR OF COMPANIES Second Respondent

JUDGMENT

Legodi J,

A. INTRODUCTION

[1] The applicant EGL EAGLE GLOBAL LOGISTICS (SOUTH AFRICA) (PTY) LTD, seeks reliefs in the following terms:

That the order issued by the second respondent, the Registrar of Companies, dated the 18 May 2007, a copy of which is annexure “PC2” to the founding affidavit of Pamela Ann Cornish, be set aside and replaced with order as follows:

That the application dated the 15 May 2002 by the first respondent Eagle Logistic cc, to the second respondent for an order in terms of section 45 of the Companies Act 61 of 1973 (hereinafter referred to as the Act) directing the applicant herein to change its name be refused.

B. BACKGROUND

[2] The background relating to this matter would not be given in details in the light of the issues which were ultimately raised and argued before me on the 13 May 2008.

[3] On or about 15 May 2002, the first respondent lodged an objection in terms of section 45 of the Act to the second respondent, the Registrar of Companies, for the change of names of the applicant on the basis that the applicant’s name was undesirable and/or calculated to cause damage to the business of the first respondent.

[4] The first respondent in its objection, sought to justify its locus standi on the basis that its rights in and to the trade mark EAGLE LOGISTICS as allegedly acquired in terms of statutory provisions under the Trade Marks Act no. 194 of 1993 ought to be protected.

[5] The objection was held by the second respondent and on the 24 February 2004, the second respondent ordered that the applicant’s name be changed. This was challenged by the applicant when it instituted review proceedings under case number 7657/04. On review the dispute was referred back to the second respondent for consideration of the matter afresh.

[6] On the 18 May 2007, the second respondent issued an order afresh in terms of which the applicant was again ordered to change its names. This decision is said to have been sent by registered post at the following addresses: 2 Eslin Road, Sunninghill and Private Bag X36 Sunninghills. These addresses were challenged as being obsolete at the time the order was sent and that the applicant did not receive the order.

[7] On the 31 May 2007 the existence of the order of the 18 May 2007 came to the knowledge of the applicant through the first respondent’s attorneys who provided a copy thereof.

[8] The applicant then raised issues with the second respondent, first that it did not receive the order purported to have been sent at the addresses set out above, secondly, that the decision was taken before the close of the pleadings in that submissions were still to be made to the second respondent.

[9] On the 6 July 3007 an official of the second respondent advised over the phone, that irrespective of the merits of the applicant’s objection to the order of the 18 May 2007, the second respondent was functus officio and that its decision must therefore stand. This telephone discussion was confirmed by a letter dated the 10 July 2007 addressed by the applicant to the second respondent.

[10] The applicant then assumed that the second respondent must be seen to have reached a final decision regarding the objection raised by the first respondent. Subsequently, the present proceedings were instituted on the 6 August 2007 and served on the 13 August 2007.

[11] At the beginning of the hearing of this matter on the 13 May 2007, Adv. Jansen SC on behalf of the first respondent took the point that the application was out of time. Firstly, that the applicant did not apply to court within one month after the 18 May 2007, secondly, that the applicant having known of the existence of the order on the 31 May 2007, failed to apply to the court for the setting aside thereof within one month after 31 May 2007. Lastly, that the applicant was out of time even if one was to accept that the one month period was to be calculated after the 6 July 2007 being the date on which the second respondent advised that its decision of the 18 May 2007 was final. In this regard, Mrs Jansen argued that the applicant failed to apply to court in time as the application was only served on the 13 August 2007.

C. ISSUES RAISED

[12] In my view, the following issues were raised by the nature of the submissions made by counsel on behalf of the first respondent:

Whether or not the one month period envisaged in section 48 of the Act should be calculated after the 18 May 2007? And if not;

Whether or not the one month period should be calculated after the 31May 2007, being the date on which the applicant became aware of the order of the 18 May 2007?

Whether the second respondent was under obligation to comply with the provisions of section 46 of the Act? And if so,

Whether or not the second respondent has complied with the provisions of section 46? And if not,

Whether the applicant was obliged to react on his knowledge of the order and or notification thereof by the second respondent on the 6 July 2007? And if so,

Whether or not the applicant was out of time by not serving on the first respondent the present application on or before the 6 August 2007?

D. APPLICABLE LEGISLATIONS CASE LAWS AND OTHER PRINCIPLES

[13] Section 45 deals with the order by the Registrar to change a name of a company. For example, in terms of subsection 2 thereof, if any person lodges an objection in writing with the Registrar against the name on the grounds that such name, translated name or shortened form of a name is calculated to cause damage to the objector or is undesirable, the Registrar may, if he is satisfied that the objection is sound, order the company concerned to change the said name.

[14] Section 46 deals with the transmission or communication of the order to the person or company against whom the order is made. Subsection (1) thereof provides that an order under section 45 for the change of a name or translated name of a company or a shortened form of a name or translated name of a company or a name referred to in section 43(2) shall be issued by the Registrar in writing and sent by registered post to the company at its registered office or postal address or to the person referred to in section 43(2) at his or her last known address and shall require such company or such person to comply with the order within two months from date of its issue.

[15] Section 48 deals with recourse to court. It provides that a company or a person aggrieved by any decision or order of the Registrar under section 41, 42,, 43, 44 and 45 may within one month after the date of such decision or order, apply to the court for relief and the court shall have the power to consider the merits of any such matter to receive further evidence and to make any order it seems fit.

[16] In Swift Transport Services Ltd v Pitman and Others, NNO 1996(1) SACR 827, dealing with the decision of Controller of Road Motor Transportation the following were said:

“There are no prescribed or usual means whereby an applicant can uncertain the decision of the controller except to wait information from him. The controller has adopted the understandable procedure of communicating by post his decision to an applicant. Accordingly until the letter containing his decision reaches an applicant, he is unable to apply for the review thereof by the review authority. If the 14 days are to be calculated from the day upon which the controller arrives at his decision to refuse an application, while it remains his secret-then the clear intention of the Legislature to give an applicant 14 days to apply for a review thereof would inevitably be frustrated.

Delay involved in preparing and posting the information to an application would not only reduce the number of days, but could even deprive an applicant of the right of review …?

Until the decision to refuse has been communicated to the applicant there has been no refusal against which an applicant can apply for the relief provided in section 22(1)”.

[17] Views expressed in Clan Transport Co (PTY) Ltd v Road Services and Swift Transport Services (PTY) Ltd 1956 R & N 322 at P 326 were adopted in Swift Transport Services (PTY) Ltd. Murray CJ as he then expressed himself as follows:

“To my mind, when an administrative body such as the present Board is called upon to perform functions of a semi-judicial character, the delivery of its judgment on the issue before it is as much a part of the proceedings as its deliberations and the arrival, after discussion, at its conclusion. Until its conclusion has been clothed with finality by its communication, either in an open sitting or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived”.

[18] In Government of the Islamic Republic of Iran v Berends 1998 (4) SA 107 N dealing with Rule 31 (2)(b) of High Court Rules of Namibia which is similar to our Rules, the principal dispute was the interpretation of the Rule which provided that a defendant should within 20 days after knowledge of a judgment apply to court to set it aside. The question arose whether the words ‘apply to court’ were to be interpreted as meaning, firstly that the application should be set down for hearing and or called in court within the specified period of 20 days or secondly, that the application should merely be lodged with the Registrar and served on the respondent within the stipulated period.

[19] It was held that the underlying purpose of Rule 31(2)(b) of the Uniform Rule was to ensure that an application made hereunder was brought to court without delay. Obedience to the subrule was said to be achieved when a defendant launched his application by means of having it filed with the Registrar and served on the plaintiff within the period of 20 days of his becoming aware of the default judgment. It was further held that to construe the expression “apply to court” as meaning that an applicant had to ensure that the application was set down on the roll for hearing and or was actually brought before the court within the 20 day period would be decidedly harsh, unjust, unreasonable and glaringly absurd as the applicant clearly had no power over a set down and or hearing before the court. It was further held that in any event the phrase ‘apply to court’ was ambiguous. It was held further that all that was required to comply with Rule 31(2)(b), was that the application be filed with the Registrar and served on the respondent within the prescribed period and that this conformed with the administration of practical justice.

[20] In Tladi v Guardian National Insurance Co Ltd 1992(1) SA 76 (T) Botha J, dealt with an application in terms of section 14(3) of the Motor Vehicle Accidents Act 84 of 1986. The applicant sought leave to bring his claim for compensation after it had become prescribed in terms of section (14) of the Act 84 of 1986. It was common cause that the 90 days period within which the application had to be made in terms of section 14(4)(a) had expired on the 25 February 1991. The application was issued by the Registrar on the 22 February 19991 but only served by the Deputy Sheriff on the 19 March 19991. The question was whether an application could be considered to have been made if it had merely been issued, but not served. It was contended on behalf of the applicant that the mere issue of the applicant and its filing with the Registrar was sufficient. The court held that the expression ‘application is made’ was capable of more than one meaning and that it should then be given a meaning that favoured the applicant. Botha J, had found that there was no authority for the proposition that the mere issue of an application was sufficient for it to have been made.

[21] In arriving at this conclusion, Botha J, took into account the fact that an application would have to be brought by notice of motion which would in terms of the Uniform Rules have to be addressed to both the Registrar and any person against whom relief was claimed. He further took into account the distinction between procedural steps over which an applicant has control, like issue and services of the process and steps over which he has no control, like dates of hearing, postponements. It was further found that as from the stage of service, it was in the power of the respondent to prevent any undue protraction which was found to be not too generous to require of an applicant not only to issue his application and file it with the Registrar, but also to serve it. The court accordingly held that the applicant was out of time for not having made his application within the requisite 90 days.

[22] Rule 49 (1) of the Magistrate Court Rules which deals with rescission of judgments, provides that a party to proceedings in which a default judgment has been given or any person effected by such judgment, may within 20 days after obtaining knowledge of the judgment serve and file an application to court, on notice to all parties to the proceedings for a rescission or variation of the judgment and the court may upon good cause shown or if it is satisfied that there is a good reason to do so, rescind or vary the default judgment on such terms as it may deem fit. Subrule 2 provides that it will be presumed that the applicant had knowledge of the default judgment 10 days after the date on which it was granted, unless the applicant proves otherwise.

[23] Rule 6(5)(a) of the Uniforms Rules provides that every application other than one brought ex-parte shall be brought on notice of motion as clear as may be in accordance with Forms 2(a) of the First Schedule and the copies of the notice, and all annextures thereto, shall be served upon every party to whom notice thereof is to be given.

[24] Subrule (5)(b) provides that in such notice the applicant shall appoint an address within eight kilometres of the office of the Registrar at which he will accept notices and service of all documents in such proceedings and shall subject to the provisions of section 27 of the Supreme Court Act set forth a day not less than five days after service thereof on the respondent on or before which such respondent is required to notify the applicant in writing, whether he intends and shall further state that if no such notification is given, the application will be set down for hearing on a stated day, not being less than 10 days after service on the said respondent of the said notice.

[25] Further in terms of subrule (5)(d)(e) and (f) a respondent who files a notice to oppose, shall within 15 days of notifying the applicant of his intention to oppose the application deliver his answering affidavit. The applicant on the other hand shall within 10 days of the service upon him of the answering affidavit deliver a replying affidavit. Within five days of delivery of the replying affidavit, the applicant may apply for allocation of date of hearing of the matter.

[26] The cardinal principle of interpretation is to determine the intention of the Legislature. If the language of the Legislature does not appear to be unequivocal from the language and the context, the presumptions of legislative intent become applicable. Once the intention of the Legislature has been ascertained, the interpreter must consider whether the words of the statute reflect the intention accurately. If they do not, then certain techniques and canons must be employed to bring the words in line with the intention. There are techniques of both restrictive and excessive interpretation, which involve the canons of interpretation. (See INTERPRETATION OF STATUES by Devenish, page 56).

[27] Words in a statute must be given their literal and ordinary grammatical meaning only if this meaning is in accordance with the intention of the legislature. The court must endeavour to construe the language or words used in the Enactment in the context in which they appear in the Act. (See Pillai v Auto Protection Insurance Co. Ltd 1964(1) SA 113 (D). The meaning of words is to be controlled by the context rather than by what may be their strict meaning or sense or their popular meaning, independent of the context. (See S v Coetzee 1964(3) SA 533).

[28] When ambiguity occurs in a statute, the literal or more usual meaning ought not to prevail if that meaning is contrary to the intention of the Legislature as it appears from the statute as a whole and interpreted in the light of the principles of the common law and its ethos as encapsulated in the presumptions of interpretations. (See Peters v Union and National South British Insurance Co. Ltd 1978(2) SA Justice 1978 (2) SA 572 (A) 592 G, See also DEVENISH’S WORK referred to earlier and in particular page 60).

[29] The intention of the legislature is to be deducted from the words it has used. It is true that owing to the elasticity which is inherit in language, it is admissible for the court in construing a statute to have regard not only to the language of the legislature, but also to its object, and policy as gathered from a comparison of its several parts, as well as from the history of the law and from the circumstances applicable to its subject matter. If on consideration of this nature, a court is satisfied that to accept the literal sense of the words would obviously defeat the intention of the legislature, it would be justified in not strictly adhering to that sense, but in putting upon the words, such other signification as they are capable of bearing. (See Dadoo Ltd & Others V Krugersdorp Municipal Council 1920 AD 530 at 554-5).

[30] The argument of unreasonableness, injustices or mischief is useful in cases open to doubt and where the language of the statute is capable of two constructions. ( See Union Government (Minister of Finance v Mack 1917 AD 731). In terms of section 34 of the Constitution everyone has the right to have any dispute that can be resolved by a court or where appropriate, an independent and impartial tribunal or forum.

DISCUSSIONS, SUBMISSIONS AND FINDINGS

[31] I now turn to deal with the issues as raised in paragraph 12 of his judgment. I must immediate point out that these issues were accurately raised for the first time on the 13 May 2008 when this matter came before me. The issues were not particularly raised in the heads of argument. The issues were raised as points in limine without getting into the merits of the matter. As issues were raised at a late stage, I did not deem it necessary to deal with both preliminary issues and issues on merits.

WHETHER OR NOT THE ONE MONTH PERIOD ENVISAGED IN SECTION 48 OF THE ACT SHOULD BE RECKONED AFTER THE 18 MAY 2007

[32] Remember, the 18 May 2007 is the date on which the second respondent purported to have issued an order in terms of section 45 of the Act. Such an order must be complied with within two months from the date of the issue. On the other hand, in terms of section 48 an aggrieved party who wishes to challenge the order, shall apply to court within one month after the date of such an order or decision. The issue raised herein was not vigorously, persisted by counsel on behalf of the first respondent. In my view, rightly so.

The principle was better enunciated in Swift Transport Services Ltd referred to earlier in paragraph 17 of this judgment, wherein it was held that until the letter containing the decision reaches an applicant, he is unable to apply for the review thereof. If the days are to be calculated from the day upon which the decision maker arrives at his decision, while it remains his secret, then the clear intention of the Legislature to give an applicant to apply to court for review would inevitably be frustrated.

Sure, the delay involved in preparing and posting the information or letter to an applicant would not only reduce the number of days, but would also deprive an applicant of the right of review. But what is even worse in the instant case is for the fact that the address or addresses used by the second respondent were being challenged by the applicant. Secondly, whilst the letter of the 18 May 2007 was marked “Registered post” there was no indication as to when the letter was actually posted. This is usually proved by providing a certificate of posting which did not form part of papers before me. The presumption that the applicant should have received or became aware of the letter within three days from date of its posting could also not find an application on the facts of the case. I revert later to this aspect when dealing with the other issue raised in this matter. I however, find that the one month period in section 48 cannot be reckoned from the 18 May 2007.

WHETHER OR NOT THE ONE MONTH PERIOD UNDER SECTION 48 SHOULD BE CALCULATED AFTER THE 31 MAY 2007?

[33] The 31 May 2007 is the date on which the applicant became aware of the second defendant’s decision of the 18 May 2007. On behalf of the first respondent, Ms Jansen SC contended that the one month period in terms of section 48 should be reckoned from the 31 May 2007. Counsel for the applicant had a different view. The applicant had no obligation to act in terms of his knowledge of the second respondent’s order in terms of section 45. Only when the applicant had received a formal notification of the order from the second respondent would the applicant be obliged to react to the order. For his submission, Mr Morley SC on behalf of the applicant heavily relied on the principle enunciated in Swift Transport Services (PTY) Ltd referred to earlier in paragraph 18 of this judgment. That is, when an administrative body is called upon to perform functions of semi judicial in character, the delivery of its judgment on the issue before it, is as a part of the proceedings, as its deliberations and the arrival, after discussion at its conclusion. Until its conclusion has been clothed with, formally by its communication, either in an open sitting or by its administrative officer to the parties, it would be difficult to see on what basis a party could legitimately attach any subsequent unanimous decision.

When counsel for the applicant made his submission, I initially had serious difficulties in appreciating the contention. Firstly, it was common cause that the applicant became aware of the order of the 18 May 2007 on the 31 May 2007. A copy of the order was furnished to the applicant by the respondent’s attorneys on the 31 May 2007. My sense was start the applicant having known of the existence of such an order should have acted upon it either in terms of section 46 or section 48. The applicant appeared to have instead, wanted to convince the second respondent that the decision was prematurely taken as pleadings were not closed.

Remember, the point was raised at a late stage that the application was out of time. As at the time the issues were argued, there was no time to reflect properly on the issues. Having reserved judgment and having considered the provisions of section 46 which was not referred to during argument, I felt it was necessary that the parties should file further heads of argument to deal with the provisions of section 46. I requested the parties to deal in their heads with the following questions:

“Whether or not the second respondent was obliged to comply with the provisions of section 46 of the Companies Act? And if so,

Whether the second respondent did comply with the provisions of the section, particularly regard been had to the averments in paragraphs 39 and 40 of the applicant’s replying affidavit deposed to on the 29 November 2007 and secondly, for the fact that the previous decision by the second respondent was challenged on the basis that it was sent to a wrong address? And if so,

Whether the applicant was entitled to ignore the letter of the 18 May 2007 from the second respondent until the 6 July 2007?

Whether the notification by the second respondent on the 6 July 2007 was in compliance with the provisions of section 46? And if so,

Whether the one month period under section 48 of the Act was activated by such a notification?

I am greatly indebted to both counsels for having responded to these questions in a short space of time. Section 46 puts an obligation on the Registrar to communicate its decision. It set out the method of such communication. These are made peremptory. That is, the order shall be issued in writing. Secondly, such an order shall be sent by registered post to the company, presently the applicant. Lastly, it must be sent to the company at its registered office or postal address. For two reasons it is now contended that the applicant was not bound by its knowledge of the order in terms of section 45 as contained in the letter of the 18 May 2007. Firstly, that it was not a communication by the second respondent to the applicant seen in the light of section 46 and authorities referred in paragraphs 17 and 18 of this judgment. Secondly, that the letter of the 18 May 2007 was not sent to the applicant at its registered office or postal address. The issue of the letter not having been sent to the applicant at its registered office or postal address should be seen in the light of the history of the matter. Secondly, it must be considered in the light of the allegations made in paragraph 39 and 40 of the applicant’s answering affidavit. In paragraphs 39 and 40, the addresses used by the second respondent are said to have been obsolete at the time the order was issued. The second respondent elected not to oppose the application. The first respondent could not in any way dispute the averments in paragraphs 39 and 40 of the replying affidavit. Previously when the order of the 24 February 2004 was challenged the issue of the wrong address was challenged as well. It must be within the second respondent’s knowledge which address or addresses are reflected in their books.

I can therefore not find that there has been compliance with the provisions of section 46 of the Act. In particular, the second respondent did not communicate its order as envisaged in section 46. The provisions of the section being coached in a peremptory manner, failure to comply should be found to have placed no obligation on the applicant to react thereto either in terms of

section 46 or section 48 within the time limit as stipulated therein. The one month period can therefore not be calculated from 31 May 2007. His knowledge of the existence of the order as on the 31 May 2007 could not have legitimised failure to comply with the provisions of section 46 regarding the manner of communication of the order or decision made under section 45. Had it not have been for the provisions of section 46, I would have had a different view. In as much as there can be no compliance with any order or decision unless you know of it, once such a decision or order comes to the knowledge of one’s attention it ought to be complied with or acted upon, unless there is a specific provision defining the manner of communication as in the present case.

The three other issues referred to in paragraph 12 above should be found to have been disposed of in the light of my finding above.

The issues are, whether the second respondent was under obligation to comply with the provisions of section 46? And if so, whether the second respondent complied with the provision of section 46? And if not, whether the applicant was obliged to react on his knowledge of the order as from the 31 May 2007? This should then bring me to consider another issue.

WHETHER THE APPLICANT WAS OBLIGED TO REACT TO THE NOTIFICATION OF 6 JULY 2007

[34] This issue too has effectively been disposed of by my earlier finding. I however find at necessary to deal further with the issue. Remember, on the 6 July 2007 an official of the second respondent informed the applicant over the phone that the second respondent was functus oficio to its decision of the 18 May 2007 and that it therefore cannot reverse it. This telephone discussion was confirmed by the applicant in an email sent to the second respondent on the 10 July 2007. The issue at hand is whether the telephone discussion of the 6 July 2007 was in compliance with the provisions of section 46? That is, whether it was a communication of an order in terms of section 46? For the same reasons stated earlier in this judgment, I do not think so. This should then bring me to consider another issue which was vigorously argued by both counsels.

WHETHER OR NOT THE APPLICANT WAS OUT OF TIME BY NOT SERVING THE PRESENT APPLICATION ON THE FIRST RESPONDENT BY THE 6 AUGUST 2007?

[35] The applicant initially wanted to accept that his obligation to react to the second respondent’s decision was on the 6 July 2007 when the second respondent confirmed over the phone its decision of the 18 May 2007. Therefore the applicant felt that the one month period should be calculated after the 6 July 2007. In doing so, the applicant on the 6 August 2007 instituted the present application. The application was however only served on the first respondent on the 13 August 2007. The first respondent took the point that the applicant applied to court out of time contrary to the one month period as required in terms of section 48. In my view, this point has fallen off by the way side in the light of my earlier finding regarding the non-compliance with the provisions of section 46. However, in the light of the importance of the issue raised, I find it necessary to deal in detail with the point as raised by counsel for the first respondent. The real issue revolves around the meaning of “apply to court” in terms of section 48. Remember, a company or person aggrieved by any decision or order of the Registrar under section 45 may within month after the date of such decision or order apply to court for relief. On behalf of the first respondent it was argued that “apply to court” means issue and service. Therefore, the applicant should have served its application on the first respondent by the 6 August 2007 in order to avoid prescription, so to speak.

[36] The applicant right at the onset, as it would appear from his founding affidavit adopted the view that issuing or filing of the application was sufficient for the purpose of the application or compliance with the provisions of section 48. I was referred to several authorities, which tend to favour the view expressed by counsel on behalf of the first respondent. For example, reliance was placed on the authorities in Government of the Islamic Republic of Iran referred to in paragraph 19 of this judgment, Tladi’s case supra referred to in paragraph 21 above, and other case laws. I do not intend dealing with all relevant authorities I was referred to, nor to deal in detail with the two cases I have referred to, in this paragraph. I gave a broad overview of these cases in paragraph 19 to 22 above. Whilst in both these cases, “apply to court” was favoured to mean service and issue it was however found that the phrase “apply to court” was ambiguous. I cannot agree more on the ambiguity of the phrase. The rules of restrictive interpretation of the phrase should therefore find applicability. In doing so, one should have regard to the method of interpretation as referred to in paragraph 27 to 31 of this judgment. Before that, I must have regard to the Rules of court.

[37] Rule 49 of the Magistrate Court’s Rules was referred to earlier in paragraph 26 of this judgment. It deals with rescission of judgments. During the recent years, the rule has undergone considerable change. It was substituted in its entirety with effect from 14 July 1997. In my view, the Rule as substituted is very explicit and it removed any ambiguity that might have exited previously. An application to court for rescission of judgment has to be served and filed within twenty after obtaining knowledge of the judgment (My own emphasis).

[38] However, Rule 31(2) of the Uniform Rules dealing with rescission of judgment is still not as refined as the same Rule dealing with rescission of judgment in the Magistrate Court. For example, in terms of Rule 31(2) a defendant may within 20 days after he or she has knowledge of such judgment apply to court upon notice to the judgment to set aside such judgment and may upon good cause shown, set aside the default judgment on such terms as it seems meet. Service and file referred to in Rule 49 of the Magistrate Rule is omitted under Rule 31(2).

[39] I have earlier on under paragraph 24 to 26 referred to the provisions of Rule 6(5). Subrule 5(a) deals with the manner of bringing an application to court. That is, it has to be on notice. Copies of such a notice and annextures thereto are to be served on every party to whom such a notice is to be given. Related hereto, are the provisions of subrule (5)(b). Subrule 5(b) deals with the manner of service and time limits.

[40] An application to court in terms of section 48 of the Companies Act has to be in accordance with Rule 6(5). That is, it has to be on notice. When such an application is served, a party entitled to receive copies of such notice of the application has the benefit of time limits set out in subrule (5)(b). That is, a date must be set forth within which a notice of intention to oppose if any must be given. Such a date must not be less than five days after service of the application as envisaged in subrule (5)(a). A party being served with the application must therefore have at least five days within which to decide to oppose the application. In the notice of application a date of the hearing of the application must also be set forth, in the event no notice of opposition is given. Such a date must at least not be less than 10 days after the date of the notice of application or motion referred to in subrule (5)(a). In the instant case, the date on or before which notice of intention to oppose was to be given, was set as 28 August 2007 and the date of the hearing as the 4 September 2007. The applicant having served the application on the 13 June 2007, complied with the provisions of subrule (5)(b).

[41] Once a notice of intention to oppose is given, there are time limits within which the answering and replying affidavits have to served and filed. Thereafter an applicant is entitled to set the matter down for hearing, failing which a respondent will be entitled to do so.

[42] Rule 6 and in particular subrule 5 thereof, is intended to ensure inexpensive and expeditious completion of litigation before the courts. It is intended to resolve disputes between litigants in as speedy and inexpensive manner as possible. Similarly section 48 of the Act read together with the other provisions of the Act for example, section 46 is intended to ensure speedy and inexpensive finalisation of any dispute arising out of a decision or order taken by the Registrar of Companies in terms of section 45. Section 48 establishes a review procedure of its kind. For example, the court hearing the application in terms of section 48 shall have the power to consider merits of any such a matter, to receive further evidence and to make any order it deems fit. The object of the section is therefore to open the doors for ventilation of any dispute concerning or a challenge to the decision of the Registrar made in terms of section 45. The time limit within which the application has to be made can only meant to ensure that there is no undue delay in the challenge to and hearing of the review against the Registrar’s decision.

[43] It could never have been the intention of the legislature to stifle such a hearing on technical advantage which has no bearing on the merits of the matter. Administration of justice can never be served by shutting down the doors in the face of a litigant who might have a good case on merits like in the present case. Clearly, the object of section 48 is to restore a chance to air real disputes. Anything short of this, would in my view, be contrary to spirit of section 48 of the Act and section 34 of the Constitution and would offend against one’ sense of justice. Constitutional imperative should be seen as the key to the holistic and or restrictive interpretation of the phrase “apply to court” in section 48. If the literal interpretation like in the instant case would mean file and serve and does not accord with the intention of the Legislature because of technical omissions, then it should be given the meaning that will fulfil such intention.

[44] The phrase “apply to court” having been accepted as being ambiguous, should therefore be restrictively interpreted. That is to mean, when an application is filed in court subject to compliance with the provisions of Rule 6 (5)(a)(5)(b) and (5)(e), no one can claim to be likely prejudiced by allowing this matter to go into the merits as envisaged in section 48. I may indicate that having perused the entire papers forming part of the record, it did not appear like here, one is dealing with an application which has no merits. It would therefore be in the best interest of justice and fairness to both parties to have the real disputes between them, be heard and decided upon.

[45] At the risk of repeating myself the intention of the legislature, is to be inferred from the words it has used. It is admissible for the court in construing a statute to have regard not only to the language of the legislature, but also to its object and policy as gathered from a comparison of its several parts as well as from the history of the law and from the circumstances applicable to its subject matter. And if, on consideration of this nature, a court is satisfied that to accept the literal sense of the words would obviously defeat the intention of the legislature, it would be justified in not strictly adhering to that sense, but in putting upon the words such other signification as they are capable of bearing (My own emphasis).

[46] Botha J, in the judgment referred to, supra in attaching “file and service” to the phrase “apply to court”, also took into account those procedural steps over which the applicant has control like filing and service as against allocation of dates of hearings and postponement over which he does not have a control. I do not think that service of an application on notice like in the instant case can be said to be an issue within the control of the applicant. In terms of Rule 4(1) such a service has to be effected by the Sheriff. That is, any document initiating application proceedings shall be effected by the Sheriff.

COSTS

[47] An order for costs is discretionary. Such a discretion has to be exercised judicially having regard to what is fair to the parties.

The general rule is that, a successful party should be entitled to costs. The effect of the ruling I intend to give hereunder is that the parties will have to enrol the application on merits. The preliminary issues by the first respondent although raised a bit late, were important issues which needed a proper reflection and adjudication on them. In the circumstances, I think an order should be wasted costs to be costs in the case.

CONCLUSION

[48] In conclusion the following order is made:

The first respondent’s points in limine are hereby dismissed.

The application on merits is hereby postponed sine die.

Wasted costs occasioned to be costs in the cause of the main application.

M F LEGODI

JUDGE OF THE HIGH COURT

SPOOR & FISHER ATTORNEYS

Attorneys for the Applicant

c/o VAN ZYL LE ROUX & HURTER

13th Floor, SAAU Building

Cnr Andries & Schoeman Streets

PRETORIA

BOWMAN GILFILLAN INC.

Attorneys for the Respondents

c/o KRANT WAGNER & PARTNERS

4th Floor, Van Der Stel Building

179 Pretorius Street