Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2012 (4) SA 484 (WCC)

Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic (Pty) Ltd and Others
2012 (4) SA 484 (WCC)

2012 (4) SA p484

Citation	2012 (4) SA 484 (WCC)
Case No	21325/11
Court	Western Cape High Court, Cape Town
Judge	Binns-Ward J
Heard	February 27, 2012
Judgment	May 2, 2012
Counsel	JC Butler SC (with M Ioannou) for the applicant.; MA Albertus SC for the first respondent.

Flynote : Sleutelwoorde E

F Company — Register of companies — Deregistration of company — Reinstatement of registration — Section 82(4) requiring reading-in that it may be used to reinstate registration of company deregistered under 1973 Act — Companies Act 61 of 1973, s 73; Companies Act 71 of 2008, ss 1 and 82(4).

G Company — Register of companies — Deregistration of company — Reinstatement of registration — 'Re-register' having same meaning as 'reinstate the registration' — Companies Act 71 of 2008, ss 1 and 82(4).

Headnote : Kopnota

Section 1 of the Companies Act 71 of 2008 provides that —

H '"company" means . . . a juristic person that, immediately before the effective date —

. . .

(c)

was deregistered in terms of the Companies Act, 1973 (Act 61 of 1973), and has subsequently been re-registered in terms of this Act; . . . .'

I To give effect to para (c), the words in italics need to be read into s 82(4):

'(4) If the Commission deregisters a company as contemplated in subsection (3), or a company has been deregistered in terms of section 73(5) read with section 73(3) of the Companies Act, 1973 (Act 61 of 1973), any interested person may apply in the prescribed manner and form to the Commission, to reinstate the registration of the company.' (Paragraph [6] at 488C – E.) J

2012 (4) SA p485

'Re-register' in s 1 is intended to have the same meaning as 'reinstate the A registration' in s 82(4). (Paragraph [21] at 495E – F.)

Cases Considered

Annotations:

Case law B

Southern Africa

Ebrahim v Evans NO 1990 (4) SA 424 (D): referred to

Ex parte Jacobson: In re Alec Jacobson Holdings (Pty) Ltd 1984 (2) SA 372 (W): referred to

Ex parte Sengol Investments (Pty) Ltd 1982 (3) SA 474 (T): referred to

Insamcor (Pty) Ltd v Dorbyl Light & General Engineering (Pty) Ltd; C Dorbyl Light & General Engineering (Pty) Ltd v Insamcor (Pty) Ltd 2007 (4) SA 467 (SCA): dictum in para [23] considered

Miller and Others v NAFCOC Investment Holding Co Ltd and Others 2010 (6) SA 390 (SCA): referred to

Mouton v Boland Bank Ltd 2001 (3) SA 877 (SCA) ([2001] 3 All SA 485): dictum in paras [12] – [13] applied D

Nedbank Ltd and Others v National Credit Regulator and Another 2011 (3) SA 581 (SCA): referred to

Nobel Crest CC v Kadoma Trading 15 (Pty) Ltd [2012] ZAWCHC 36: considered

Pieterse NO and Another v The Master and Another 2004 (3) SA 593 (C): referred to

Pieterse v Kramer, NO 1977 (1) SA 589 (A): referred to E

Pyramid Freight (Pty) Ltd v Incorporated General Insurances Ltd and Another 1993 (2) SA 323 (W): referred to

Rainbow Diamonds (Edms) Bpk en Andere v Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy 1984 (3) SA 1 (A): referred to

Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd 1991 (3) SA 846 (W): referred to F

Silver Sands Transport (Pty) Ltd v SA Linde (Pty) Ltd 1973 (3) SA 548 (W): referred to

Walker Engineering CC t/a Atlantic Steam Services v First Garment Rental (Pty) Ltd (Cape) 2011 (5) SA 14 (WCC): referred to. G

England

Salton v New Beeston Cycle Co [1900] 1 Ch 43: referred to.

Statutes Considered

Statutes

The Companies Act 61 of 1973: see Juta's Statutes of South Africa 2010/11 vol 2 at 1-220 H

The Companies Act 71 of 2008, ss 1 and 82(4): see Juta's Statutes of South Africa 2010/11 Supplement vol 2 at 2-8 to 2-9 and 2-51.

Case Information

Application for a declaration that a company had been re-registered.

JC Butler SC (with M Ioannou) for the applicant. I

MA Albertus SC for the first respondent.

Cur adv vult.

Postea (May 2). J

2012 (4) SA p486

Judgment

Binns-Ward J: A

[1] Pursuant to an arbitration agreement concluded in October 2007, arbitration proceedings ensued between Peninsula Eye Clinic (Pty) Ltd (PEC) and the Newlands Surgical Clinic (Pty) Ltd (NSC). These B proceedings culminated in an award in favour of PEC on 25 July 2008. The award determined the extent of PEC's shareholding in NSC, which had been in dispute, and consequentially directed NSC to pay a stated amount to PEC in respect of dividends, together with arrear interest. It also directed NSC to pay the costs of the arbitration, as well as the costs of preceding litigation between the parties in the high court. The C arbitration agreement permitted an appeal. The appeal noted by NSC was dismissed with costs on 18 October 2010 by three arbitrators constituted as an appeal tribunal. NSC refused to pay the amount apparently due by it in terms of the arbitral award. In order to enable it to enforce compliance with the arbitral awards, PEC has applied for an D order in terms of s 31(1) of the Arbitration Act 42 of 1965. [1]

[2] NSC has opposed the application. It has been contended on its behalf that to give the arbitral awards the court's imprimatur would be to, in effect, lend force to a transaction that was legally void by reason of its contravention of s 38 of the Companies Act 61 of 1973 ('the 1973 Companies Act', E or the '1973 Act'), which was applicable at the material time.

[3] However, before one can reach that question there is a preliminary matter which requires determination. It arises out of PEC's application, F in terms of paras 1 and 2 of the notice of motion, for the following relief:

'1.

That it be declared that:

1.1

The first respondent [ie NSC] has been re-registered as a company;

1.2

That (sic) the assets of the first respondent which vested in the first respondent prior to it being deregistered, have been G re-vested in the first respondent with effect from the date upon which the respondent was deregistered.

2.

Alternatively to prayer 1, giving such directions as the above Honourable Court may deem meet to effect the re-registration of the first respondent, and the re-vesting of the first respondent's former assets in the first respondent.'

H [4] The application in terms of paras 1 and 2 of the notice of motion came about because an impediment to the enforcement of the arbitral awards was identified upon the discovery that NSC had been deregistered as a company in January 2008, as a consequence of its failure to file an annual return, as required in terms of s 173 of the 1973 Companies Act, I which was then in force. The deregistration of NSC thus predated

2012 (4) SA p487

Binns-Ward J

both the arbitral awards. The parties to the arbitration learned about the A deregistration of NSC only after the completion of those proceedings. [2]

[5] In Miller and Others v NAFCOC Investment Holding Co Ltd and Others 2010 (6) SA 390 (SCA), in para 11, it was observed '(d)eregistration . . . puts an end to the existence of the company. Its corporate personality B ends in the same way that a natural person ceases to exist at death.' Unlike a natural person, however, a deregistered company is amenable to resurrection. Under the 1973 Companies Act this could happen in terms of an order of court made in terms of s 73(6), or by restoration of its registration by the registrar of companies in terms of s 73(6A) [3] of the C Act. Those provisions, which also expressly allowed that upon the restoration of a company's registration it would be treated, at least to the extent required, as if it had remained in existence during the period of its deregistration, were repealed in terms of s 224 of the currently applicable Companies Act 71 of 2008, which came into operation with effect from 1 May 2011. Broadly equivalent, but by no means identical, D provisions to those of s 73(6) and 73(6A) of the 1973 Act [4] are to be

2012 (4) SA p488

Binns-Ward J

A found in s 82(4) of the currently applicable statute. [5] However, the currently applicable provisions do not contain anything, at least expressly, equivalent to the retrospectivity provisions that obtained in terms of s 73(6)(a) and (b) and s 73(6A) of the 1973 Act. Furthermore, under the 2008 Companies Act, the reinstatement of the registration of B companies deregistered in terms of s 82(3) of the Act falls exclusively within the province of the Companies and Intellectual Property Commission (the Commission). There is no provision in the 2008 Act for the restoration of the registration of a company by order, on application to a court.

C [6] There is also no express provision in the 2008 Act for the restoration of the registration of companies, like NSC, which were deregistered in terms of the 1973 Companies Act. However, the only manner of giving sensible effect to paragraph (c) of the definition of 'company' in s 1 of the 2008 Companies Act, which relates to 'a juristic person that, immediately D before the effective date . . . was deregistered in terms of the Companies Act, 1973 (Act 61 of 1973), and has subsequently been re-registered in terms of this Act', is to read into s 82(4) of the statute, after the words 'as contemplated in subsection (3)', the words 'or a company has been deregistered in terms of section 73(5) read with section 73(3) of the Companies Act, 1973 (Act 61 of 1973)'. [6] The result E is that a company that has been deregistered in terms of the 1973 Companies Act for failing to file its annual returns may be reinstated on the register by the Commission on application in terms of s 82(4) of the 2008 Companies Act.

[7] The relief sought in terms of para 1 of the notice of motion was F predicated on PEC's allegation that NSC was re-registered at its instance in or about October 2011, the erstwhile directors of NSC having failed over a...