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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 2 : Formation, Administration and Dissolution of Companies

Part A : Reservation and registration of company names

12. Reservation of name and defensive names

 

 

1) A person may reserve one or more names to be used at a later time, either for a newly incorporated company, or as an amendment to the name of an existing company, by filing an application together with the prescribed fee.

 

2) The Commission must reserve each name as applied for in the name of the applicant, unless—
a) the applicant is prohibited, in terms of section 11(2)(a), from using the name as applied for; or
b) the name as applied for is already reserved in terms of this section.

 

3) If, upon reserving a name in terms of subsection (2), there are reasonable grounds for considering that the name may be inconsistent with the requirements of—
a) section 11(2)(b) or (c)—
i) the Commission, by written notice, may require the applicant to serve a copy of the application and name reservation on any particular person, or class of persons, named in the notice, on the grounds that the person or persons may have an interest in the use of the name that has been reserved for the applicant; and
ii) any person to whom a notice is required to be given in terms of subparagraph (i) may apply to the Companies Tribunal for a determination and order in terms of section 160; or
b) section 11(2)(d) —
i) the Commission may refer the application and name reservation to the South African Human Rights Commission; and
ii) the South African Human Rights Commission may apply to the Companies Tribunal for a determination and order in terms of section 160.

 

4) A name reservation continues for a period of six months from the date of the application, and may be extended by the Commission for good cause shown, on application by the person for whom the name is reserved together with the prescribed fee, for a period of 60 business days at a time.

 

5) A person for whom a name has been reserved in terms of subsection (2) may transfer that reservation to another person by filing a signed notice of the transfer together with the prescribed fee.

 

6) If the Commission reasonably believes that an applicant in terms of subsection (1), a person to whom a reserved name is to be transferred, or a person for whom a name is reserved, may be attempting to abuse the name reservation system for the purpose of selling access to names, or trading in or marketing names, the Commission may issue a notice to that person—
a) requiring the person to show cause why that name should be reserved or continue to be reserved, or why the reservation should be transferred;
b) refusing to extend a name reservation upon its expiry;
c) refusing to transfer a reserved name; or
d) cancelling a name reservation.

 

7) If, as a result of a pattern of conduct by a person, or two or more persons who are related or inter-related, the Commission has reasonable grounds to believe that the person or persons have abused the name reservation system by—
a) selling access to names, or trading in or marketing reserved names; or
b) repeatedly attempting to reserve names for the purpose of selling access to names, or trading in or marketing reserved names,

the Commission may apply to a court for an order prohibiting the person or persons from applying to reserve any names in terms of this section for a period that the court considers just and reasonable in the circumstances.

 

8) In considering whether a person has abused, or may be attempting to abuse, the name reservation system as contemplated in subsection (6) or (7), the Commission, Tribunal or a court may consider any relevant conduct by that person or any related or inter-related person, including—
a) the reservation of more than one name in a single application or a series of applications;
b) a pattern of repetitious applications to reserve a particular name or a number of substantially similar names, or to extend the reservation of a particular name;
c) a failure to show good cause for a reservation period to be extended; or
d) a pattern of unusually frequent transfers of reserved names without apparent legitimate cause having regard to the nature of the person’s profession or business.

 

9) Any person may on application on the prescribed form and on payment of the prescribed fee apply to the Commission to—
a) register any name as a defensive name for a period of two years; or
b) renew, for a period of two years, the registration of a name as a defensive name,

in respect of which he or she has furnished proof, to the satisfaction of the Commission, that he or she has a direct and material interest.

 

10) The registration of a defensive name may be transferred to another person by notice in the prescribed manner and form and upon payment of the prescribed fee.