IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case No: CT007SEP2016
In the matter between:
OLD MUTUAL LIFE ASSURANCE COMPANY
(SOUTH AFRICA) LIMITED APPLICANT
and
SUPERFUND TRADING (PTY) LTD
(Registration No. 2013/042089/07) RESPONDENT
Presiding Member of the Companies Tribunal: ISHARA BODASING
Date of Decision: 31 OCTOBER 2017
___________________________________________________________________
DECISION
1. INTRODUCTION
1.1 The Applicant is Old Mutual Life Assurance Company (South Africa) Limited, a
body corporate established in terms of the South African Mutual Life Assurance
1
Society (Private) Act 52 of 1966, and situated at Mutual Park, Jan Smuts Drive,
Pinelands, Cape Town, 7405.
1.2 The Respondent is Superfund Trading (Pty) Ltd., a company duly incorporated in
accordance with the company laws of South Africa with registration number
2013/042089/07, having its registered address at 633 Third Street, Springs,
Gauteng, 1559.
1.3 On 09 September 2016 the Applicant brought an application in terms of Sections
11(2) and 160 of the Companies Act 2008 (“the Act”) read with Regulation 142 of
the Companies Regulations 1 (“the Regulations”) for an order that the Respondent
change its name to one which does not incorporate the “Gucci” trademark. 2 This
is clearly an error on Applicant’s part, which is rectified through all the supporting
documentation that refers to the trademark “Superfund.” For these purposes, I
shall overlook this as a typographical error, and proceed on the basis that
Applicant seeks an order for Respondent to change its name to one that does not
incorporate the “Superfund” trademark.
1.4 On 06 October 2017 Applicant applied for a default order in terms of Regulation
153 of the Regulations, in respect of the relief sought in the initial application.
1.5 The founding affidavit in the CTR142 form is deposed to by Ms Zulpha Karriem-
Toll, a legal advisor of the Applicant, and duly authorised to do so on its behalf.
Mr Christiaan Kruger, an admitted attorney of the High Court of South Africa,
deposed to the supporting affidavit in the CTR 145 form. He is a Senior Associate
at Spoor and Fisher that represents the Applicant in intellectual property matters.
2. BACKGROUND
2.1 Applicant is a well-established and renowned South Africa company, especially in
the insurance and financial sector. The Applicant’s objection is based on the
1 GN R351 in GG 34239 of 26 April 2011.
2 P44 of Applicant’s indexed bundle.
2
statutory rights it holds in the trademark “SUPERFUND”, by virtue of the Trade
Marks Act 194 of 1993 (class 36), as well as common law rights it has acquired
through use.
2.2 According to the Companies and Intellectual Property Commission (CIPC)
records, as on 29 May 2015, Respondent’s status was “deregistration process”
due to non-filing of annual returns.
3. ISSUES
3.1 Applicant became aware of Respondent’s ‘offending’ name in March 2014, and
brought an application to this Tribunal two and a half years later. Applicant
argues that good cause has been shown because the delay is attributed mainly
to its attempts to locate Respondent. This was undertaken through the services
of an investigator, one Guy Upton, whose affidavit forms part of the evidence.
3.2 Despite Applicant’s averments in respect of good cause, I am compelled at the
outset, to deal with the fact that Respondent has not participated in these
proceedings, and appears to not even be aware thereof.
3.3 Mr Upton’s instructions from Applicant’s attorneys were to ascertain if the
Respondent was actively trading, and if so, the manner in which it was utilising
the Superfund trademark. Mr Upton states that he could not find Respondent’s
registered address, and he could not trace the sole Director, Mr Riaz Ahmed. Mr
Upton was able to locate someone associated with one of Mr Ahmed’s other
companies, who furnished the investigator with a mobile number. Mr Upton states
that the number was incorrect and/or non-existent. He filed his report to this effect
on 21 July 2014. 3
3.4 Mr Kruger, of Spoor and Fisher, in his Founding Affidavit (dated 6 October 2017)
for the default judgment application, confirms Mr Upton’s statement. However,
3 See p25 of Applicant’s bundle.
3
reference is made to a “confidential report” 4 of the investigator, which does not
form part of the evidence before this Tribunal.
3.5 What does form part of the evidence is an email sent on 22 January 2015 (my
emphasis) by Mr Upton to Applicant’s attorneys (Spoor and Fisher) in which is
stated the following:
It was recorded during the original investigations that the sole director, Mr Riaz
Ahmed, had specifically said (my emphasis) that the address of the above
company … was in BAKERTON, … 5
3.6 On the face of it, this communication contradicts the impression created in the
rest of Applicant’s papers: that they have not been able to locate Respondent or
its Director. It is also disconcertingly apparent that this position is postulated after
the email, which clearly states that there was direct contact.
4. APPLICABLE LAW
4.1 Section 160 of the Act deals with Disputes concerning reservation or
registration of company names as follows:
…
(2) An application in terms of subsection (1) may be made—
(a) within three months after the date of a notice contemplated in subsection
(1), if the applicant received such a notice; or
(b) on good cause shown at any time after the date of the reservation or
registration of the name that is the subject of the application, in any other
case.
4.2 Companies Regulation 142 of 2011 provides for Applications to the Tribunal
in respect of matters other than complaints
…
4 See para. 4.7 at p6 of Applicant’s bundle.
5 See 5th para at p30 of Applicant’s bundle.
4
(2) The applicant must serve a copy of the application and affidavit on each
respondent named in the application, within 5 business days after filing it.
4.3 Companies Regulation 153 provides for default orders:
…
(2) On an application in terms of sub-regulation (1), the Tribunal may make an
appropriate order––
(a) after it has heard any required evidence concerning the motion; and
(b) if it is satisfied that the notice or application was adequately served.
4.4 Companies Regulation 7 provides for Delivery of documents:
…
(3) If, in a particular matter, it proves impossible to deliver a document in any
manner provided for in the Act or these regulations––
(a) if any person other than the Tribunal is required to deliver the
document, the person may apply to either the Tribunal or the High Court for an
order of substituted service;
5. EVALUATION
5.1 The merits of Applicant’s initial application for relief and the issue of good cause
are over-shadowed by the fact that Respondent is clearly unaware of these
proceedings. Applicant argues that it has taken all reasonable steps to locate
Respondent and/or its Director. However, given that much time has passed since
Applicant first became aware of Respondent’s ‘offending’ name, and that there is
no evidence that Respondent is trading, I focus this decision on the importance of
service.
5.2 In the case of Masetlha v President of the Republic of South Africa and
5
Another 6, Ngcobo J stated:
“The procedural aspect of the rule of law is generally expressed in the maxim
audi alteram partem principle ('the audi principle'). This maxim provides that no
one should be condemned unheard. It reflects a fundamental principle of fairness
that underlies or ought to underlie any just and credible legal order. The maxim
expresses a principle of natural justice. What underlies the maxim is the duty on
the part of the decision-maker to act fairly. It provides an insurance against
arbitrariness...this principle is triggered whenever a statute empowers a public
official to make a decision which prejudicially affects the property, liberty or
existing right of an individual.”
5.3 The Tribunal has been seized with the issue of proper service. In the case of
Growthpoint Properties Ltd v Growth Point Mining (Pty) Ltd 7, it was decided
that a matter can not be considered until it has been established that proper
service was effected. It was also noted as important that the lack of participation
in the proceedings by the Respondent should not be due to lack of knowledge
due to non-service on it by the Applicant. In the case of Skybridge CC and
Another v Skybridge Investments (Pty) Ltd and Another 8 it was emphasised
that service of notice is a crucial to the rules of natural justice. Both these
applications were not successful as the Tribunal found that there had not been
proper service of the notice on the Respondent.
5.4 In a situation such as the one in casu, where a person’s location cannot be
traced after numerous attempts, there are other options that need to be
exhausted. If service of an application proves difficult to be effected in terms of
the provisions as stipulated legislatively or in terms of the Uniform Rules, the
Applicant may apply to the Tribunal for an order of substituted service in terms of
regulation 7(3)(a). The Applicant has to show that all information, which can
assist in locating the Respondent, has been explored, and must enunciate the
actual steps taken to ascertain the location of the Respondent. The Tribunal may
6 2008 (1) SA 566 (CC) at para 187
7 Case no: CT020JUN2015 at 6
8 Case no: CT004DEC2016 at 7
6
then make an order for substituted service as it deems fit, such as publication in a
newspaper, Government Gazette or even social media.
5.5 Finally, this Tribunal in Tyris Construction (Pty) Ltd v Tyris Construction
Projects (Pty) Ltd 9 granted an order for substituted service by way of publication
of the Applicant's intended name dispute application in two local English
newspapers circulating in the area in which the Respondent resides or trades, as
well as publication in the Government Gazette.
6. FINDINGS
6.1 As mentioned earlier, the merits of Applicant’s case is moot in the face of non-
service on the Respondent.
6.2 In light of the fact that it is not clear on Applicant’s papers whether or not there
has been contact with the sole Director of Respondent, and that substituted
service could close any gaps of unfairness in the procedure, the Tribunal is not
satisfied that Applicant has exhausted all avenues to notify Respondent.
6.3 There has not been satisfactory compliance with the provisions of Companies
Regulation 153(2)(b). The Applicant’s application for default judgment is therefore
refused.
ADV. ISHARA BODASING
9 Case number: CT006JUL2017 at 16