Tusk Financial Services (Pty) Ltd and Another v 87 Civil (Pty) Ltd

The applicants (Tusk Financial Services (Pty) Ltd and Tusk Construction Support Services) applied for the provisional liquidation of the respondent (87 Civil (Pty) Ltd). The application was based on a loan agreement, goods supplied, and services rendered at the respondent's special instance and request. The applicants asserted that the respondent was indebted to them in the sum of R4,094,637.24. On 18 July 2024, the applicants sent a statutory demand to the respondent in terms of section 345 of the Companies Act 61 of 1973, but no payment was made. The applicants contended that the respondent was unable to pay its debts and was deemed insolvent under section 344(f) of the Companies Act 1973. The application and statutory demand were served at the respondent's registered address and domicilium address (5 Fynbos, Welgevonden Estate, Stellenbosch). Service was effected by the sheriff affixing a copy to the outer principal door after a diligent search revealed no other means of service. At the hearing on 7 October 2024, the respondent sought a postponement, claiming its directors only became aware of the application on 4 October 2024 and that the respondent had vacated its registered address without updating its records with the CIPC.

• Whether the respondent's application for postponement should be granted.
• Whether the applicant had complied with the statutory requirements for a provisional liquidation order under the Companies Act 61 of 1973.
• Whether service of the liquidation application at the respondent's registered address and domicilium address was effective despite the respondent allegedly having vacated the premises without updating CIPC records.
• Whether the respondent's failure to pay the statutory demand and its debts established inability to pay debts as contemplated in sections 344 and 345 of the Companies Act 1973.

1. The respondent was placed under provisional liquidation in the hands of the Master of the High Court. 2. A rule nisi was issued calling upon the respondent and interested parties to show cause on 21 November 2024 why a final liquidation order should not be granted and why costs should not be costs in the liquidation. 3. Service of the order was directed on the respondent, employees/trade unions, SARS, and by publication in Cape Times and Die Burger newspapers.

A company's registered address under section 23(3) of the Companies Act 71 of 2008 serves the same purpose as a domicilium citandi et executandi, and service of legal process at that address is valid even if the company has vacated the premises without notifying the CIPC of a change of registered address as required by section 23(3)(b)(ii). Additionally, an application for postponement must be supported by a full and satisfactory explanation; a bare claim that directors were unaware of the proceedings despite proper service, without substantiating affidavits, does not justify a postponement.

The court emphasised that if a company changes its registered office, it must file a notice of change with the CIPC. Until such registration, the company has no registered office other than the one on record. The court noted that by choosing a registered address or domicilium, the respondent assured the public that service of legal process would be valid at that address and guaranteed it would notify the public of any change. The court also remarked that the circumstances would have been different if the respondent had explicitly declared in the remand application that it did not owe the applicants any money.

This case clarifies the legal consequences of a company failing to update its registered address with the CIPC. It affirms that service at the registered address remains effective and valid for winding-up proceedings even when the company has physically vacated the premises, provided the company has not formally registered a change of address. It reinforces the principle that a company cannot rely on its own failure to comply with statutory notification obligations to avoid the consequences of proper service of liquidation proceedings.