IMPORTANT NEWS & CIRCULAR Bulletin 6 of 2013 Bulletin 20 of ...

3in execution to Nikkel. On 13 December 2011 Absa caused the property to be attached. It was only towards the end ofMarch 2012, that Absa’s head office learned that the property had been sold in execution to Nikkel. In order to preventtransfer to Nikkel, Absa on 3 April 2012 obtained an urgent provisional winding-up order against Voigro, unaware thatVoigro had been deregistered. The fact of deregistration came to light later in April 2012. This led to the launching of theapplication on 30 April 2012, which had given rise to this appeal. In his judgment of 14 November 2012 the Courtdismissed the application and also discharged the provisional liquidation order.The primary relief sought by Absa pursuant to the rule nisi was: [a] an order reinstating Voigro’s registration in terms ofsection 83(4)(a) of the 2008 Act read with section 26 of the Close Corporations Act; [b] an order directing the firstrespondent the CIPC to reinstate Voigro on the register of close corporations; [c] an order directing that uponreinstatement (i) the assets of Voigro would no longer be bona vacantia; (ii) the assets of Voigro would vest in thecorporation with retrospective effect to 24 February 2011 (the date of final deregistration) as if Voigro had not beenderegistered; (iii) all liabilities of Voigro would continue and would be enforceable against the corporation. Absa alsosought an order that the sale of the property to Nikkel be declared null and void. Finally, Absa asked for an order that itscosts be borne by Voigro upon its restoration to the register.The applicant’s case was that a deregistered close corporation could in terms of section 26 of the CC Act (as amendedwith effect from 1 May 2011) read with the 2008 Companies Act, be revived either by the CIPC in terms of section 82(4)of the Act or by the Court in terms of section 83(4)(a) of the Act. The applicant contended that revival by the CICP wasnot practically available to Absa because an application to the CIPC for reinstatement must in terms of section 82(4) bemade “in the prescribed manner”. Regulation 40(6) of the regulations promulgated in terms of section 223 required inthis regard that the annual returns which the corporation should have lodged be brought up to date together withpayment of the prescribed fees. This was not something which could be done by an outsider such as Absa. Voigro’s solemember at the time of its deregistration was the seventh respondent, but he could not be compelled to do what wasneeded to achieve reinstatement in terms of section 82(4). It was thus just and equitable, so Absa contended, for theCourt to revive Voigro in terms of section 83(4)(a) and to grant the ancillary relief sought.The Court a quo found that section 83(4)(a) read with section 26 of the Close Corporation Act, was not applicable to thecase of a close corporation deregistered by the Registrar (prior to 1 May 2011) or by the CIPC (on or after 1 May 2011)for failure to file annual returns. The exclusive manner in which a corporation could be revived in such a case was byreinstatement by the CIPC in terms of section 82(4). In reaching this conclusion the Court had regard to the distinctionwhich existed in the previous Companies Act, between the restoration of deregistered companies (section 73(6) of the1973 Act) and the declaring void of the dissolution of companies following liquidation (section 420 of the 1973 Act). TheCourt concluded that section 83(4)(a) had the same scope as the old section 420. The Court recognised that aninterested party in Absa’s position faced certain obstacles in complying with the procedures prescribed pursuant tosection 82(4) for reinstatement by the CIPC, but was not convinced that it was “impossible or that difficult” to bring suchan application.Section 82 provided, (3) “in addition to the duty to deregister a company contemplated in subsection (2)(b), theCommission may otherwise remove a company from the companies register only if (a) the company has transferred itsregistration to a foreign jurisdiction in terms of subsection (5), or (i) has failed to file an annual return in terms of section33 for two or more years in succession; and (ii) on demand by the Commission, has failed to (aa) give satisfactoryreasons for the failure to file the required annual returns; or (bb) show satisfactory cause for the company to remainregistered; or (4) If the Commission deregisters a company as contemplated in subsection (3), any interested personmay apply in the prescribed manner and form to the Commission, to reinstate the registration of the company”. Section83 provided ,” (1) a company is dissolved as of the date its name is removed from the companies register unless thereason for the removal is that the company’s registration has been transferred to a foreign jurisdiction, as contemplatedin section 82(5) (4) At any time after a company has been dissolved a) the liquidator of the company, or other personwith an interest in the company, may apply to a court for an order declaring the dissolution to have been void, or anyother order that is just and equitable in the circumstances; and b) if the court declares the dissolution to have been void,any proceedings may be taken against the company as might have been taken if the company had not been dissolved”.The Court found that section 83(4) of the Companies Act, applied to both a company and a close corporation that weredissolved pursuant to administrative deregistration or liquidation. The wording used in sections 83 and 84, did not allowfor a distinction to be drawn between the terms “deregistration” and “dissolution”, as was the position under the oldCompanies Act. As a result section 83(4) applied to both a company or close corporation that was deregistered forreasons other than liquidation. This included deregistration on any of the grounds set out in section 82(3), being thefailure to file annual returns for two consecutive years. Where a company or corporation had been deregistered in termsof section 82(3) (failure to file annual returns) rather than in terms of section 82(2)(b) (winding up), an interested partymay either apply to ‘the CIPC’ for restoration in terms of section 82(4), or to the Court, in terms of section 83(4).Significantly where the interested party found it impossible or practically difficult to comply with the prescribed

4requirements relating to restoration in terms of section 82(4), an application to Court in terms of section 83(4) wasavailable as an alternative. The circumstances in which it would be appropriate to exercise the discretion granted to aCourt in section 83(4), would include the circumstances recognized under the old Companies Act. The fact that thederegistered CC had assets at the time of deregistration was important in this context. On the facts it appeared thatVoigro’s revival in terms of section 83(4) would be just and equitable in the circumstances, especially because it wasdissolved while still owning a valuable property; it still had at least two unpaid creditors (the Municipality and the bank),one of which held a mortgage bond over the property at the time of the dissolution. Accordingly the bank should succeedin its application to declare Voigro’s dissolution void. CIPC must, in consequence, restore Voigro’s name to the registerof close corporations. Since the order was being granted in terms of section 83(4), not section 82(4), it was not requiredthat the annual returns had to be filed beforehand. The CIPC would thus be obliged, by the Court order, to restoreVoigro’s name to the register and would not be entitled to insist that outstanding annual returns be lodged or thatprescribed fees were paid.With regard to the assets and liabilities of Voigro, the result of ordering the reinstatement was that the corporation wasre-vested with the assets and liabilities it had immediately prior to its dissolution. However nothing done by the companyand no action taken against the company during the period of dissolution, was of any effect and no validity. Voigro’sassets would, in addition, no longer be bona vacantia and would vest in Voigro with retrospective effect to the date ofderegistration, as if Voigro had not been deregistered. It followed that the sale to Nikkel was also void, Voigro did notexist at the time the Municipality attached the property in July 2011 or at the time the Sheriff purported to sell theproperty in October 2011. At the time of the sale in execution, the property belonged to the State as bona vacantia, notto Voigro.BORROWING MONEY TO PURCHASE A HOMEKrog v Botes (37469/2012) [2013] ZAGPJHC 36In this application, the applicant had instituted action against the respondent for payment in the sum of R1 149 401.38.The claim related to an alleged loan for the purchase of an immovable property. The applicant also claimed otheramounts allegedly loaned and advanced to the respondent. The applicant sought pending the determination of theaction, to interdict the respondent from selling, alienating and/or encumbering the immovable property which wassituated at 10 Harold Street, Sunnyrock, Primrose. In the alternative, the applicant sought an order that the proceedsfrom the sale of the Harold Street property be retained in a trust account held by the attorneys.The applicant submitted that the amounts claimed were owed to him based on the following namely, the applicant andrespondent became involved in a relationship in October 2008. The respondent was an escort but she informed theapplicant that she no longer wanted to be an escort and was concerned for her daughter’s wellbeing. The applicantsuggested that he would look after her and support her and would, in effect become her only client to which therespondent agreed. After six to eight months, the respondent informed the applicant that she no longer wanted to remainat the property, which she was renting in Primrose. The parties found a home, at 3 Eugenia Road, Wychwood, Primrose.The applicant purchased it through a Close corporation, Savanna Plains Investments 17 CC, in which the applicant wasthe sole member. The purchase price for the Eugenia road property was R860 000.00 to which the respondent made nocontribution. The respondent moved in and the particular arrangement continued as before. During 2010 the respondentfelt that the area in which the Eugenia Road property was situated was becoming unsafe. The applicant found theHarold Street property in an advertisement which was to the respondent’s liking and it was agreed that an offer would beput in for this property. The respondent suggested that she would like to purchase the Harold Street property with theproceeds from an investment that would be maturing shortly. The applicant was asked to lend her the purchase priceand transfer costs, totalling R1 149 401.38, to purchase the Harold Street property and the applicant agreed.The offer to purchase was signed by the respondent on 22 November 2010 and the purchase consideration paid withthe moneys loaned by the applicant. The Harold Street property was then registered in the respondent’s name.According to the applicant, he also loaned money to the respondent to purchase jewellery, a BMW X5 and a VWCaravelle motor vehicle. The respondent made no repayments to the applicants for these amounts advanced. Thearrangement between the applicant and the respondent came to an end during July 2012 and the respondent thenmoved out of the Harold Street Property. It came to the applicant’s attention in August 2012 that the respondent hadplaced the Harold Street property on the market with the intention to sell the property. The respondent in her answeringaffidavit averred that the applicant was seeking an anti-dissipation interdict in that he wanted to prevent her from dealingfreely with her assets. She submitted that his papers did not set out a clear case and that she was indeed disposing ofand liquidating her assets and doing so in such a manner that would intentionally defeat any alleged claim of theapplicant. The respondent denied that the applicant had any right or justification in having the monies from the sale paidinto a trust account. The respondent dealt with her other assets presumably in order to show that she had sufficientmeans to deal with her alleged debts. With regard to the motor vehicles, the respondent submitted that the applicant had

5taken possession of the Caravelle and of a Kia motor vehicle, even though she submitted that she was the owner of theCaravelle as she purchased same from him. She further submitted that she was entitled to possession of the Kia as shepurchased it through motor finance. She had not instituted proceedings against him for the delivery of the motorvehicles.The respondent admitted that the relationship came to an end in July 2012. The respondent stated this was as a resultof the applicant’s aggressive attitude. She alleged assault and stated that this led the respondent to seek a domesticviolence interdict against the applicant. The respondent stated that on 23 July 2012 the applicant, through his employee,changed the locks and effectively dispossessed the respondent of the Harold Street property. This led to a spoliationapplication which returned possession to her. This was according to the applicant by consent.The respondent denied that she was still an escort, but rather was employed as a nail technician. She did not provideproof of her employment position and income. The respondent set out further in her answering affidavit that she used toearn in the region of R300 000.00 to R400 000.00 per month and from that income she purchased the Harold Streetproperty. She did not provide bank statements or any other documentation in this regard. The respondent admitted thatthe applicant did contribute to some of the costs of refurbishments, but stated that the majority of the refurbishmentswere paid from her own savings. As a result, she submitted that there was never a loan agreement that was entered intoand thus she had no obligation to repay the applicant. The respondent agreed that she wished to sell the property, inorder to use the proceeds from that sale to purchase another property that was unknown to the applicant so that hewould stop harassing her. The respondent’s version as to the source of the monies to purchase both the Eugenia Roadand Harold Street properties was a source of concern. In the founding affidavit in the domestic violence application, therespondent stated that she bought the Eugenia Road property with proceeds from an inheritance from her father. Shewas advised by the applicant that she should use the money from the proceeds of the sale of the Eugenia Road propertyto purchase the Harold Street property. However in her answering affidavit in the present proceedings, she did not giveany version as to how the Eugenia Road property was purchased, but stated that she purchased the Harold Streetproperty with her income from being an escort.The applicant pointed out that there was also a dispute between her affidavit in the domestic violence application andher answering affidavit in this application, in regard to both the funding of and the refurbishments of the Harold streetproperty. In her answering affidavit herein, she averred that she alone sourced the property and paid for most of therefurbishments whereas in her domestic violence affidavit she made no averment that she paid for these refurbishments.In fact she stated that the applicant found the property and refurbished it while she was away.The issues in dispute in this case was the following namely, who paid for the Eugenia Street property; if the applicantpurchased, through his close corporation, the Eugenia Road property, did that property fund the purchase of the HaroldStreet property and if so; did the respondent have the right to deal freely with the Harold Street property and; was therean imminent threat of dissipation of the proceeds from any sale of the Harold street property by the respondent?The applicant had argued that he would show on a balance of probabilities in the action that the purchase price of theEugenia Road property was indeed provided by the applicant through the close corporation in which he was the solemember. The applicant’s submission was that the respondent’s version was unreliable in that she alleged, in thefounding affidavit of the domestic violence application that she paid for the property with proceeds from an inheritancefrom her father yet in her answering affidavit to the present application she did not give any version as to how theEugenia Road property was purchased. Furthermore she provided no evidence of her paying a purchase price nor ofany statements or other documents that showed she did receive an inheritance that could have been used to purchasethe property. What was of relevance was that she allowed the property to be registered in the name of a closecorporation wherein the applicant was the sole member. The applicant attached the deed of sale for the Eugenia Streetproperty from which it appeared that seller was Savanna Plains Investments 17 CC, the close corporation in which theapplicant was the sole member. Prima facie it appeared that the close corporation, in which the applicant was the solemember, was the purchaser and owner of the Eugenia Street property.Whilst it was common cause that the respondent signed the offer to purchase the Harold Street Property, the issue indispute was who funded the purchase the price? The applicant submitted that it was a loan to the respondent and thatshould she not repay it, the property would be sold and the proceeds used to settle her indebtedness to him. Therespondent’s version was that she paid the purchase price as was evidenced by the offer to purchase being signed byher, that the property was registered solely in her name and that she earned “vast sums of money” as an escort fromwhich she paid the Harold street property purchase price. In her founding affidavit in the domestic violence application,the respondent stated that she used the proceeds from the first house, that being the Eugenia Road property, to pay forthe Harold Street property.

6The applicant submitted he had established a prima facie right to a portion of the proceeds of the Harold Street propertyto repay the loan of the purchase price and transfer fees. The applicant submitted that this property was the only asset inthe estate of the respondent that would effectively settle her indebtedness to him should he be able to execute againstthe property. His right to execution will only be available once it has been confirmed in the main action between theparties. The applicant submitted further that he was indeed a creditor of the respondent through a loan agreement thatspecifically made provision for him to receive the proceeds from the sale of the Harold Street property if the purchaseprice was not repaid to the applicant. The respondent denied this in her answering affidavit and stated that a plea to thiseffect was to be filed in due course. The respondent had said that the applicant’s case was based on an anti-dissipationinterdict, which would require him to show that the respondent was likely to spirit away the proceeds from a sale of theHarold Street property. In the Court’s view, the applicant did not need to go that far. What he essentially sought was aninterim interdict to secure the proceeds of the sale pending the determination of his action, which directly involved theasset in question. In the Court’s view the applicant had established that he had a prima facie case that he was entitled tothe proceeds of the Harold Street property. He would suffer irreparable harm as the Harold Street property was therespondent’s only asset and his claim for damages in due course would be fruitless. The respondent averred that shewas now working but led no evidence as to what her earnings were and whether they could satisfactorily settle her primafacie indebtedness to the applicant.The applicant also had no other satisfactory remedy against the respondent. In the respondent’s answer to thisapplication, she had not set out any other property or any proof of her earnings that could provide solace to the applicantthat his claim in the main action would not amount to nothing. Without an order interdicting the proceeds of the HaroldStreet property, the applicant would be left with little tangible options to protect his rights and interests.The balance of convenience favoured the applicant. The applicant averred that to the best of his knowledge the HaroldStreet property was being rented out. He further alleged that the respondent was living with her new partner. Therespondent however, said the property was to be sold because she did not want the applicant to know where she livedas he had a habit of assaulting her and that she did not wish to “retain the memories associated with that property”. TheCourt had to balance the applicant’s need to have certainty that his claim in the main action would not amount to noughtagainst the respondent’s need to distance herself from the applicant. She withdrew the domestic violence applicationand if the property was sold, she would have achieved what she sought, even if the proceeds were interdicted.In the circumstances, the Court found that the applicant had set out a prima facie case that the proceeds of the saleshould, in the interim, be interdicted until the main action had been resolved and the ownership of the Harold Streetproperty and the entitlement to the proceeds thereof was determined by the trial judge. The following order was thusmade, upon the sale of the property situated at 10 Harold Street, Sunnyrock, Primrose, the net proceeds were to be paidto the Applicant’s attorneys to be held in trust, pending the determination of the action.SEMINARSFOCUS ON THE NATIONAL CREDIT ACTThe seminar discusses the context in which the NCA operates and the significant changes it has brought about. Thefocus is on the latest developments, with an update on relevant case law and possible amendments to the Act.TOPICS OF DISCUSSIONThe National Credit Act of 2005 is the umbrella legislation controlling credit in South Africa. Examine the latestdevelopments in:• The application of the Act;• Registration requirements;• Costs of credit;• The drafting of credit agreements;• Pleadings and debt restructuring; and• Possible amendments to the National Credit ActDATES:• Cape Town 20 May 2013• Durban 27 May 2013

7• Pretoria 3 June 2013• Bloemfontein 5 June 2013• Port Elizabeth 10 June 2013• East London 11 June 2013• Johannesburg 13 June 2013COSTS:• Practising attorneys: R 990• Candidate attorneys / support staff: R 870• Practising attorneys from firms located further than 200 km from the closest venue: R 650• Non-practising attorneys / Others: R 1 980For more information please visit http://www.lssalead.org.za/ or contact the Knowledge Centre.DEBT COLLECTION - THE LITIGATION PROCESSThis seminar takes a closer look at the practical application of the debt collection litigation process to assist businessesmaximise the chances of recovery.SEMINAR CONTENT:• The National Credit Act (NCA) in terms ofo collections;o categories of credit agreements;o Section 129 Notices;o debt review and admin orders from a credit provider’s perspective; ando charging interest and costs• Consents to judgment• Instituting action• Enforcing judgment debts through:o warrants of execution;o initiating financial enquiries;o garnishee applications; ando emoluments attachment applications• The latest court decisions• A brief look at prescription of debts and proposed changes to the prescription lawsDATES:• Johannesburg 10 July 2013• Pretoria 11 July 2013• Cape Town 19 July 2013• Durban 23 July 2013• East London 29 July 2013• Port Elizabeth 30 July 2013• Bloemfontein 2 August 2013COSTS:• Practising attorneys: R 990 per person• Candidate attorneys/support staff: R 870 per person• Practising attorneys from firms located further than 200 km from the closest venue: R 650 per person• Non-practising attorneys/others: R 1 980 per personFor more information please visit http://www.lssalead.org.za/ or contact the Knowledge Centre.

8BILLSCORRECTION TODRAFT MARINE LIVINGRESOURCESAMENDMENT BILL,2013DRAFT DEEDSREGISTRIESAMENDMENT BILL,2013DRAFT SECTIONALTITLES AMENDMENTBILL, 2013Published for comment in GenN 434 in GG 36413 of 25April 2013 publishedPublished for commentPublication of explanatory summaryPublished for commentPublication of explanatory summaryB9-2013B10-2013GG 36462 (15.05.13)B11-2013GG 36462 (15.05.13)PROCLAMATIONS AND NOTICESDEPARTMENT OFAGRICULTURE,FORESTRY ANDFISHERIESDEPARTMENT OFJUSTICEPENSION FUNDS ACT 24OF 1956INCOME TAX ACT 58 OF1962TRADE METROLOGYACT 77 OF 1973PUBLIC SERVICE ACT,1994 (PROCLAMATION103 OF 1994)NATIONAL EDUCATIONPOLICY ACT 27 OF 1996Animal health tariff structure for 2013/14 publishedDraft Revised Sector Specific Fisheries Policies on theAllocation and Management of Fishing Rights, May 2013,for the following sectors: Traditional Linefish Fishery,Squid Fishery, Tuna Pole and Line Fishery, DemersalShark Fishery, Oyster Fishery, White Mussel Fishery,Hake Handline Fishery and KZN Prawn Trawl Fisherypublished for commentDraft Voluntary Court-Annexed Mediation Rules of theMagistrates' Courts published for commentDirective PF No. 7 on Section 15 - Submission ofPrescribed Annual Returns publishedNotice in terms of para. 14 (3) (a) of the Fourth Scheduleprescribing the date by which an employer must render areturn publishedNotice of intention to amend regulations published forcommentSchedule 2 amendedRegulations published in GN R1 in GG 21951 of 5January 2001 amended with effect from1 August 2013National policy pertaining to the programme andpromotion requirements of the National CurriculumStatement Grades R-12 published in GNs 722 and 723 inGG 34600 of 12 September 2011 amendedGG 36432 (10.05.13)GG 36460 (14.05.13)GG 36432 (10.05.13)GG 36467 (17.05.13)GG 36454 (17.05.13)GG 36454 (17.05.13)GG 36455 (17.05.13)GG 36465 (17.05.13)ROAD ACCIDENT FUNDACT 56 OF 1996Road Accident Fund Amendment Regulations, 2013publishedGG 36452 (15.05.13)

9SOUTH AFRICANSCHOOLS ACT 84 OF1996Amendment to pass mark of Trinity College of LondonGrade 7 External Music programme to be offered as partof the National Senior Certificate Programme publishedGG 36465 (17.05.13)SKILLS DEVELOPMENTACT 97 OF 1998ADULT EDUCATION ANDTRAINING ACT 52 OF2000FINANCIAL ADVISORYAND INTERMEDIARYSERVICES ACT 37 OF2002SPATIAL DATAINFRASTRUCTURE ACT54 OF 2003ASTRONOMYGEOGRAPHICADVANTAGE ACT 21 OF2007Notice of dissolution of National Productivity Institute (theNPI) with effect from 31 May 2013 and transferral of all itsassets, rights, liabilities and obligations to ProductivitySouth Africa ('Productivity SA') published as required bypara. 7 of Schedule 2A of the ActRegulations on the Assessment Process and Proceduresfor Adult Education and Training at NQF Level 1publishedExemption of Tshireletso Financial Services (Pty) Ltd,2013 publishedDraft Custodianship Policy and the Policy on the Pricing ofSpatial Information Products and Services published forcommentCorrection to declaration of restriction on certain activitiesin Sutherland Core Astronomy Advantage Area publishedin GenN 842 in GG 35790 of 19 October 2012 publishedGG 36466 (17.05.13)GG 36463 (15.05.13)GG 36464 (17.05.13)GG 36470 (17.05.13)GG 36454 (17.05.13)PROVINCIAL LEGISLATIONFree StateConstitution of theRepublic of South Africa,1996 and LocalGovernment: MunicipalSystemsAct 32 of 2000Free State Gambling andLiquor Act 6 of 2010GautengNgwathe Local Municipality: Adoption of Standard By-laws:Standard Electricity Supply By-law as published under PN185 in PG 81 of 9 December 2011; Standard Control ofStreet Vendors, Peddlers or Hawkers By-law as publishedunder PN 179 in PG 81 of 9 December 2011; StandardCredit Control and Debt Collection By-law as publishedunder PN 180 in PG 81 of 9 December 2011; Standard Fireand Emergency Services By-laws as published under PN189 in PG 81 of 9 December 2011 and Standard InformalSettlements Bylaw as published under PN 194 in PG 81 of9 December 2011 publishedLimited Gambling Machine Rules published and previousrules replacedPG 11 (17.05.13)PG 14 (17.05.13)Draft Gauteng Planningand Development Bill,2012Published for comment PG 128 (10.05.13)Kwazulu-NatalKwaZulu-Natal HeritageAct 4 of 2008Draft applications for alterations and additions to ordemolition of protected buildings published for commentPG 949 (16.05.13)

10Western CapeNational EnvironmentalManagement: ProtectedAreas Act 57 of 2003Notice of intention to declare a protected environment andapproval of appropriate consultation processes in respectof the proposed Robberg Coastal Corridor ProtectedEnvironment published for commentPG 7129 (10.05.13)National EnvironmentalManagement: ProtectedAreas Act 57 of 2003Declaration of the Skeiding Nature Reserve published PG 7129 (10.05.13)Land Use PlanningOrdinance 15 of 1985and DevelopmentFacilitation Act 67 of1995Withdrawal of Urban and Regional Structure Plans (formerGuide Plans) publishedPG 7129 (10.05.13)