Automated Summary
Key Facts
Carl Zeiss AG applied to the Companies Tribunal to compel Zeiss Trading Enterprise (Pty) Ltd to change its name due to similarity with the ZEISS trademark. The applicant attempted service via sheriff twice (June 2015 and March 2016) but failed. It then used substituted service by publishing in the Mahikeng Mail and Government Gazette in June 2016 without Tribunal approval. The Tribunal refused the default order, ruling that substituted service must first be authorized by the Tribunal under High Court Rules.
Issues
- The main issue was whether the applicant could serve the first respondent by substituted service without first obtaining an order from the Tribunal. The Tribunal held that substituted service must be sanctioned by the Tribunal, and the applicant's attempt without such permission was invalid, leading to the refusal of the default order.
- The applicant served the application outside the 5 business days required by Regulation 142(2) and did not seek condonation for the delay. The Tribunal was not satisfied with this procedure, contributing to the refusal of the default order.
Holdings
- The court found that the applicant failed to serve the application within the 5-business-day period mandated by Regulation 142(2) and did not apply for condonation for the delay, despite acknowledging procedural challenges.
- The court held that a party cannot serve a respondent by substituted service without first obtaining an order from the Tribunal, as per High Court Rules and Regulation 154 of the Companies Regulations 2011. The applicant's self-initiated substituted service without Tribunal sanction was deemed impermissible.
Remedies
The applicant's application for a default order was refused by the Tribunal. The court held that the applicant improperly served the first respondent by substituted service without first obtaining an order from the Tribunal.
Legal Principles
The Companies Tribunal held that substituted service requires prior court authorization under the High Court Rules. The applicant's unilateral substituted service without seeking permission from the Tribunal was deemed impermissible, as the Regulations do not provide for self-initiated substituted service. The Tribunal emphasized that procedural compliance with service requirements is mandatory, and failure to obtain an order invalidates the service process.
Cited Statute
- Companies Act 71 of 2008
- High Court Rules
- Companies Regulations 2011
Judge Name
M.F. Kganyago
Passage Text
- 12.1. The applicant's application for a default order is refused.
- In terms of the High Court Rules, a party who wishes to serve another party by way of substituted service, must first obtain an order of the court to do so. The party cannot out of its volition, proceed to serve the other party by way of substituted service and expect the court to condone that.
- The applicant has served the first respondent by way of substituted service without first obtaining an order of the Tribunal, and it did not even apply for condonation for failure to first obtain permission from the Tribunal. Therefore, in my view, a party is not permitted to create its own procedures of how the other party should be served. If the applicant was experiencing problems of how to serve its application, it should have first approached the Tribunal for permission to serve by way of substituted service like it is done in the High Court.