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Really? Companies and Intellectual Property Commission

BACKGROUND

Over the past couple of years, I have had a number of "interesting" interactions with the Companies and Intellectual Property Commission, better known as CIPC. Some of these interactions have left me speechless, disappointed, enraged and/or infuriated.

Some time has  passed since my last interaction with CIPC. The other day I came across an email which made me shudder. The "fond" memories of my interactions with the administrators at CIPC washed over me like a tsunami.

Over the next couple of weeks I will be posting transcripts of my email correspondence with CIPC, for your amusement and instruction.

Enjoy.

MERGER NOTICE
CIPC1:  "Please provide Mr Pike with the exact requirements for a CoR89 merger application and the mailbox within which must be lodged."

CIPC1:  "Please check if you have received above CoR89 application and advise client."

CIPC2:  "Please note that only profit making companies may amalgamate or merge s113 (1) “Two or more profit companies”, (Companies Act 71 of 2008)"

PIKE:    "Please refer to item 2 of Schedule 1 of the Companies Act 71 of 2008."

CIPC1:  "The client is correct. Schedule 2(2)(b) of the Companies Act provides for the amalgamation or merger of non-profit companies. A non profit may not however merge with a profit company."

CIPC2:  "Please attach the merger agreements from both companies, certified ID Copies of directors and a letter of deregistration together with the COR 89 Form. Please email them to me. It was a nice lesson shared with you guys."

PIKE:  I’m not sure why the requested documents are required. Neither the Act, nor the Regulations require filing of the merger agreements, certified ID copies or a letter of deregistration with a Notice of Merger.  The Merger Notice is attached.

 The deregistration is pursuant to the merger, and is not an application for deregistration in terms of section 82, regulation 40(3) or regulation 40(4). Given that this is not an application to deregister the company, the practice note that you purport to rely upon (presumably 7 of 2012) is not relevant.

The company that will be deregistered (the merging company) lives on (for lack of a better expression) in the merged company. All of the rights, duties and obligations are transferred from the merging company to the merged company. All of the employees, creditors and shareholders have been notified in accordance with the Act.

The purpose of the practice note (presumably) is to protect the stakeholders of a company that is being deregistered in the ordinary course, that is for reasons other than a merger, where the stakeholders may not have been given notice of the deregistration.

Nevertheless, the Act is clear in relation to the Commissioner’s statutory obligation, namely … after receiving a notice of … merger, the Commission must … deregister any of the amalgamating or merging companies that did not survive the amalgamation or merger.

Please proceed as a matter of urgency. This process has been unduly prolonged.

Adam Pike
Author: Adam Pike
Adam Pike holds BA, LLB and LLM degrees from the University of Cape Town. His LLM, attained from the School of Advanced Legal Studies at the University of Cape Town, focused on commercial and corporate law, particularly corporate governance and securities. Adam specialises in the implementation of corporate actions and transactions.

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