Previously, the Registrar of Companies would deregister a company or close corporation when it failed to file annual returns. If the directors were not willing to do so themselves, in terms of section 73 (6)(a) of the old Companies Act 61 of 1973, a person had to apply to the High Court to restore registration.
Since the new Companies Act 71 of 2008 was introduced, there is now a question over whether this is still the case.
Section 73(6)(a) of the old Act dealt with the restoration of a company. The new Act does not have a similar section, but section 82(4) merely states that:
“If the commission deregisters a company as contemplated in subsection (3), any interested person may apply in the prescribed manner and form to the commission, to reinstate the registration of the company.”
Section 82(4) must be read with regulation 40 (7), which states:
“An application to reinstate a deregistered company or external company must be made in form CoR 40.5 and must comply with such conditions as the commission may determine.”
The current position is very unclear and the legislator should intervene to clarify the position. In the interim we recommend that all companies file their annual returns on time to avoid deregistration.
See the September 2011 de Rebus for the full article
