Azisa (Pty) Ltd v Azisa Media CC and Another

• Jurisdiction: South Africa
• Judge: Nel J
• Judgment Date: 27 November 2001
• Citation: 2002 (4) SA 377 (C)
• Docket Number: 6215/2000
• Hearing Date: 15 October 2001
• Counsel: M J Fitzgerald SC (with him M W Janisch) for the applicant. A C Oosthuizen SC for the first respondent. No appearance for the second respondent.
• Court: Cape Provincial Division

Nel J:

This is an application brought in terms of s 20(2)(b) of the Close Corporations Act 69 of 1984 (CC Act) for an order directing the first respondent to change its name on the grounds that the name is undesirable and/or calculated D to cause damage to the applicant.

The relevant subsections of ss 19 and 20 of the CC Act read as follows:

'19 Undesirable names and reservation of names

(1) No founding statement containing a name for a corporation to be E incorporated and no amended founding statement containing a new name for a corporation shall be registered if the name is in the opinion of the Registrar undesirable.

. . .

20 Order to change name F

(1) If within a period of one year after the registration of a founding statement of a corporation it appears to the Registrar that a name mentioned in the founding statement is undesirable, he shall order the corporation concerned to change such name.

(2) Any interested person may -

(a)

within a period of one year referred to in ss (1), on payment of the prescribed fee apply in writing to the Registrar for an order directing the corporation to change its name on the ground of G undesirability or that such name is calculated to cause damage to the applicant; or

(b)

within a period of two years after the registration of a founding statement apply to a Court for an order directing the corporation to change its name on the ground of undesirability or that such name is calculated to cause damage to the applicant, and the Court may on such application make such order as it deems fit. H

(3) The Registrar may, after application has been made in terms of para (a) of ss (2), in writing order the corporation concerned to change its name if, in the opinion of the registrar, it is or has become undesirable.

(3A) Any person feeling aggrieved by any decision or order of the Registrar under this section may . . . within one month after the I date of such decision or order apply to a competent . . . Court for relief,. . . .'

First respondent submitted, as a preliminary point, that the application had been brought out of time. Its founding statement was registered on 28 August 1998 and the application was issued and served on 28 August 2000. J

Nel J

Mr Oosthuizen, who appeared on behalf of the first respondent, submitted that where a statute prescribes that an act A or event is to take place within a specified period, and in the absence of clear indications to the contrary, the civil method of computing time ordinarily applies to the calculation of that period, ie, by including the first day and excluding the last day. He referred to Joubert v Enslin 1910 AD 6 and Nair v Naicker 1942 NPD 3. B

Mr Fitzgerald, who appeared with Mr Janisch on behalf of the applicant, in turn submitted that recourse to the civil method of computing time is permissible only when the wording is ambiguous, and that the word 'after' is not ambiguous. He relied on the decision of Watermeyer J (as he then was) in Versveld v SA Railways & Harbours 1937 CPD 55 where it was held that if C time is to run 'after' the occurrence of an event, the time begins to run with the advent of the day thereafter. He also referred to Holmes v North Western Motors (Upington) (Pty) Ltd 1968 (4) SA 198 (C) and Pivot Point SA (Pty) Ltd v Registrar of Companies and Another 1980 (4) SA 74 (T) at 78B - 79C where Coetzee J said the following: D

'The civil method of computing time is part of our common law. Relying on this rule, the second respondent contends that the applicant was one day late and that the last day for launching the proceedings was 18 November. This is correctly computed, civilly. The second respondent relies on dicta in the cases which were catalogued in Makhutchi NO v Minister of Police 1980 (2) SA 229 (W). For the applicant, on the other hand, it is contended E that, whilst the Courts adopt the ordinary civil method of computation, the language of the statute concerned must be examined as that may indicate a different intention which is of paramount importance.

It is usually accepted that a different intention is indicated when the word ''after'' is used in the statute. It is not necessary to refer to all the cases quoted by counsel on this point as I think that F matter is very adequately summarised by Corbett J (as he then was) in Holmes v North Western Motors (Upington) Ltd 1968 (4) SA 198 (C) at 204 where he said the following:

''The language being reasonably clear, it was not necessary to have recourse to the ordinary civilian method of calculation. Another example of the same approach, in this instance in the interpretation of a statutory provision, is the case of Versveld v SA Railways and G Harbours 1937 CPD 55 which related to the interpretation of s 64(1) of the Railways and Harbours Regulation Control and Management Act 22 of 1916, which provided for a limitation of actions brought against the Railway Administration unless commenced 'within 12 months after the cause of action arose'. This Court held that, if this period of six months were calculated civiliter, the day upon which H the cause of action arose would be excluded and the period should be calculated to commence with the first instant of the following day. In explaining his reasons for coming to this conclusion Watermeyer, J (as he then was) stated:

'In every computation of time there must be an instant from which time runs. But this instant may not be clearly defined inasmuch as time may run from or after the occurrence of an event or from or I after a day or date. If it is to run ''from'' a day or date or the occurrence of an event, the instant will have to be determined either by the relevant intention or by rules of law, because the word ''from'' is ambiguous; the day or date from which time runs or on which the event occurs from which time runs, may or may not be included in the calculation. (See J

Nel J

Joubert v Enslin 1910 AD at 47.) But the word ''after'' is not ambiguous. If time is to run A ''after'' a day or date, then clearly that day or date must be excluded from the calculation of time. (See Bahadur v Jex 1933 NPD 572.) And I think that if time is to run ''after'' the occurrence of an event, and if time is calculated civiliter ad dies ''after'' the event, not necessarily the whole of the day in which the event occurs must be excluded from the calculation and time must begin to run with the advent of the next day. This is the B logical consequence of not recognising fractions of days.'

This case and the above-quoted reasoning were strongly relied upon by Mr Cooper. Insofar as this reasoning relates to a period which is defined as being 'after' a day or date, it is extremely persuasive and is in accordance with most of the relevant decisions (see eg National Bank of South Africa Ltd v Leon Levson C Studios Ltd (supra); Bahadur v Jex 1933 NPD 572); but it loses some of its cogency when it deals with a period of time which is to run after an event and in this respect it runs counter to certain decisions.

I do not read Versveld's case supra as laying down that in all cases where it is provided that a period of time is to run 'after' the occurrence of an event (as distinct from a day or date), the day upon which the event occurs must be excluded in D the computation of the period. As was stressed in Joubert v Enslin (supra) it is basically a question of intention. The use of the word 'after' in such cases is an important factor but it is not necessarily a decisive one. The provision in question must be examined in its general context in order to determine whether, in the case of a contract, the parties gave a definite indication of their intention.'' E

In the instant case the language of the statute indicates, I think, clearly that the ordinary civil method is not to be employed because of the phrase ''after the date of such decision''. There may possibly be a different result if the wording had been ''after such decision''. As Corbett J pointed out, it is only when an event is identified, as opposed to a date, in the legislation concerned that the cogency of the reasoning based upon the use of ''after'' loses some F of its force. I have therefore come to the conclusion that the applicant was still in time when the papers were served on 19 November 1979 and the point in limine is dismissed.'

The criticism levelled at the Versveld case in Nair v Naicker related to the uncertainty the judgment could create and not to the reasoning of Watermeyer J which could not be faulted. The judgment of Broome J reads as follows (at 8 - 9): G

'The second ground of the Versveld decision was that, when time has to be computed civilly ''after'' an event, the whole of the day upon which the event occurs must elapse before time begins to run. In Cock's case, (supra) and in Joubert v Enslin, which approved it, the contracts in question used the word ''from'' and not ''after''. The same H word was used in the section of the statute considered in Lammas' case. In Craig's case the word was ''after'', but the Court apparently attached no importance to this, because De Villiers JP in setting out the effect of the rule in question, uses the word ''from''. In Bahadur v Jex, (supra), the section under consideration used the words ''after the date of the accident'', and it was held that the day upon which the accident occurred must be excluded. The decision is not I directly in point because, as I read the judgments, it turned primarily upon the consideration that the section in question referred to a date as distinct from an event as the starting-point of the period. As Lansdown J said at p 578:

''In the phrase 'six months after an accident' the Legislature intended that the day of the accident should be included, whereas in using in contradistinction J

Nel J

the words 'six months after the date of the accident'...