REINSTATEMENT OF COMPANIES AND CLOSE CORPORATIONS (CIPC PRACTICE NOTE 1 OF 2022)
The Companies and Intellectual Property Commission (CIPC) recently issued a revised practice note regarding the re-instatement of companies and close corporations in terms of section 40(6) and (7) of the Companies Regulations.
CIPC will only reinstate a company or close corporation if:
- The company or close corporation was in business at the time of deregistration (proof will have to be provided that it was conducting business or has any other economic value at the time of deregistration);
- There is immovable property registered in the name of the business; or
- There is a court order re-instating the company or close corporation.
The procedure to re-instate a company entails submitting the re-instatement application form CoR40.5 to CIPC with the supporting documents.
Once CIPC has approved the re-instatement application, all outstanding Annual Returns must be filed in order to complete the re-instatement process. If the Annual Returns are not filed within 30 business days from date of re-instatement, the company or close corporation will be finally deregistered again without any further notification.
The legal effect of the re-instatement of a company or close corporation was considered by the Supreme Court of Appeal (SCA) in the case of Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd 2015 ZASCA 25. The Court concluded firstly, that the re-instatement of the registration of a company by CIPC in terms of the Companies Act 71 of 2008 is automatically retrospective (the corporate activities during the period of deregistration are validated) and secondly, that once the company has been re-instated, a party who is prejudiced by the automatic retrospective effect can seek relief in terms of section 83(4) and a court may grant the relief it considers just and equitable.
The position adopted by the SCA in the above judgment is a welcome decision for third parties in that it serves to safeguard bona fide third parties, who may not be aware of the deregistration of a company or close corporation and continue to transact with the company or close corporation.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).
Written by: Sarah Marx – Associate
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