Lemmer v Companies and Intellectual Property Commission (CT007Feb2015) [2015] ZACT 62 (1 July 2015)
- Citation
- [2015] ZACT 62
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- Lizelle Haskins
- Case number
- CT 007FEB2015
More details
- Court
- Competition Tribunal
- Panel
- Lizelle Haskins
- Case number
- CT 007FEB2015
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the Applicant failed to comply with the procedural requirements set out in the Companies Regulations. Specifically, the affidavits did not provide sufficient information or grounds for granting the requested relief, and the application for default order was not properly served on the Respondent. As a result, the Tribunal was not satisfied that the Applicant was entitled to the relief sought and declined to grant the default order.
Court disposition
Application for default order refused; Applicant directed to provide further information and comply with service requirements.
Orders
- The Applicant is directed to provide more information and set out reasons for entitlement to the relief claimed.
- The Applicant must ensure compliance with the Companies Regulations regarding proper service on the Respondent.
02
Material facts
Parties
Johannes Casparus Lemmer
ApplicantCompanies and Intellectual Property Commission
Respondent03
Procedural history
Posture
Default Application / Application for Default Order
04
Questions and positions
Legal issues
- 01
Whether the Applicant complied with the procedural requirements for service under the Companies Regulations.
- 02
Whether the affidavits provided sufficient grounds for granting the requested relief.
- 03
Whether the Tribunal can grant a default order in the absence of proper service and substantiation.
Party arguments
- Applicant
- The Applicant contends that the Respondent failed to respond to the application within the prescribed period and requests that the Tribunal order the reservation and registration of the company name 'Council for Sexual Health Professionals (CSHP)'. The Applicant submits affidavits and supporting documents, including an email sent to the Respondent and Tribunal, as evidence of service and compliance.
- Respondent
- The Respondent did not file any response to the application and default order request. No arguments were presented by the Respondent.
05
Court’s reasoning
Legal principles
- 01
Regulation 142, Companies Regulations
An applicant must serve the application and supporting affidavit on the respondent within five business days after filing with the Tribunal, as required by Regulation 142 of the Companies Regulations.
- 02
Regulation 153(1), Companies Regulations
If the respondent does not file a response within the prescribed period, the applicant may apply for a default order, provided proper service has been effected.
- 03
Regulation 153(2)(b), Companies Regulations
The Tribunal may only make an appropriate order if satisfied that the notice or application was adequately served.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the Applicant failed to comply with the procedural requirements set out in the Companies Regulations. Specifically, the affidavits did not provide sufficient information or grounds for granting the requested relief, and the application for default order was not properly served on the Respondent. As a result, the Tribunal was not satisfied that the Applicant was entitled to the relief sought and declined to grant the default order.
Obiter and limits
- Applicants must ensure strict compliance with service requirements under the Companies Regulations to avoid procedural defects.
- Affidavits supporting applications must clearly set out the factual and legal basis for the relief claimed.
Court disposition
Application for default order refused; Applicant directed to provide further information and comply with service requirements.
- The Applicant is directed to provide more information and set out reasons for entitlement to the relief claimed.
- The Applicant must ensure compliance with the Companies Regulations regarding proper service on the Respondent.
Source and reliance status
Competition Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Competition Tribunal
Order
IN
THE COMPANIES TRIBUNAL OF SOUTH AFRICA (PRETORIA)
Case No.: CT 007FEB2015
In the matter between:
JOHANNES
CASPARUS
LEMME
Applicant
and
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
Respondent
DECISION
INTRODUCTION
[1] This is an application requesting a default order against the Respondent in terms of section 11(2), section 12 and section 160 of the Companies Act 71 of 2008 (the "Companies Act") read with Regulation 153 of the Companies Act (GNR 351 of 265 April 2011) (the "Companies Regulations").
[2] The Applicant requests that the Respondent be ordered to reserve and register Council for Sexual Health Professionals (CSHP) as the Applicants company name.
PARTIES
[3] The Applicant is Johannes Casparus Lemmer, a member of Sexology SA's Professional Council for Sexual Health Practitioners, with
registration No. 2005/121355/23 and having its place of principal business situated at Suite 60, Private Bag x1 Menlo Park, 0102.
[4] The Respondent is the Companies and Intellectual Property Commission, a member of the Department of Trade and Industry group.
PROCEDURE
[5] Before an application for a default order can be brought by an Applicant, the Applicant must comply with Regulation 142 and Regulation 143 of the Companies Regulations.
[6] In accordance with Regulation 142 of the Companies Regulations, the Applicant is obliged to serve a copy of the application and the affidavit on the Respondent within 5 business days after filing it with the Tribunal.
[7] In addition, the Applicant must bring an application for a default order in terms of Regulation 153(1) of the Companies Regulations. In terms of Regulation 153(1), if the Respondent has not filed a response within the prescribed period, the Applicant may apply to have the order, as applied for, issued against the Respondent by the Tribunal.
[8] Finally, Regulation 153(2)(b) of the Companies Regulations also states that the Tribunal may make an appropriate order, if it is satisfied that the notice or application was adequately served.
EVALUATION
[9] The Applicant has provided the Tribunal with CTR 142 and CTR 145 together with affidavits and an email sent to the Respondent and Tribunal dated 2 February 2015.
[10] From the documents provided by the Applicant, there are a number of problems, the most pertinent are the following:
[10.1] The affidavits submitted in support of the main application, the application to request the Tribunal to order the Respondent to reserve and register the proposed company name and the default application does not provide any information or basis for which an order in favour of the Applicant can be granted; and
[10.2] The main application and application for default has not been properly served on the Respondent as required in terms of the above regulations.
[10] In the circumstances, I am not satisfied that there has been compliance with the Companies Regulations by the Applicant.
ORDER
I proceed to make an order in the following terms:
a) The Applicant is directed to provide more information and to set out reasons why he is entitled to the relief claim and further to ensure that he complies with the above regulations in respect of proper service on the Respondent.
ADV
LIZELLE HASKINS
MEMBER
OF THE COMPANIES TRIBUNAL
DATED: 1 July 2015
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