BACK TO THE FUTURE: THE REINSTATEMENT OF DEREGISTERED COMPANIES AND CLOSE CORPORATIONS, SECTION 82(4) OF THE COMPANIES ACT 71 OF 2008 Missouri Trading CC v ABSA Bank Ltd 2014 (4) SA 55 (KZD)

Abstract

In terms of section 82 of the Companies Act 71 of 2008 (hereinafter “the Act”) a company or a close corporation may be deregistered by the Companies and Intellectual Property Commission (hereinafter “the Commission”) if it failed to timeously lodge its annual returns with the Commission or if it has been inactive for a number of years. An important issue in terms of the Act is with regard to the consequences of re-registering a deregistered company or close corporation. When a company or close corporation is deregistered, it ceases to exist as a separate juristic person and its assets and rights vest automatically in the State as bona vacantia. Sections 82 and 83 of the Act provide the ways in which re-registration may occur, that is by application to the Commission or to the High Court. The previous Companies Act 61 of 1973 and the Close Corporations Act 69 of 1984 contained provisions that expressly provided that the reinstatement of companies and close corporations were fully retrospective, and the effect was as if the entity was not deregistered in the first place. The new Act, however, does not contain a similar express provision, whether this was simply an oversight by the legislature or intentional is debatable. In Missouri Trading CC v ABSA Bank Ltd (2014 (4) SA 55 (KZD)) the court discussed the conflicting views with regard to whether section 82 of the Act has retrospective application.