topic 9: remedies and enforcement Flashcards
(24 cards)
What is the CIPC and when was it established?
Companies and Intellectual Property Commission (CIPC), established in terms of Section 185.
What are the main functions of the CIPC (Section 187)?
Register/deregister companies, investigate complaints, issue/enforce compliance notices, make recommendations to FRSC.
What authority and structure does the CIPC have?
Independent, impartial juristic body with national jurisdiction (Sections 176–179).
What areas fall under the CIPC’s mandate?
Companies, close corporations, cooperatives, trademarks, patents, designs, copyright legislation.
What is the CIPC’s primary legal basis?
Derived from the Companies Act, 2008.
When was the Companies Tribunal established and what does it do?
Established under Section 193; adjudicates and helps resolve disputes as an alternative to courts (Section 195).
What section outlines the Tribunal’s procedures?
Sections 180–184.
How is an application filed with the Registrar?
By delivery, registered mail, email (with cover message), or fax.
When was the TRP established and what does it regulate?
Section 196; regulates affected transactions like asset disposals, mergers, or schemes of arrangement.
What powers does the TRP have?
Approve documents, issue certificates/exemptions, investigate, and issue compliance notices.
What is the role of the FRSC?
Advise the Minister, receive financial reporting standards, ensure consistency with international standards.
Who appoints Inspectors and under what section?
Appointed by the CIPC under Section 209.
What is the function of Specialist Committees (s191)?
Advise the Minister and CIPC.
What are the four mechanisms of dispute resolution?
- ADR (ss166–167, 195(b));
- Tribunal adjudication (s195(a));
- Complaint to Commission or Panel (ss156(d), 168);
- Court proceedings (s156(c))
What is ADR and its key features?
Alternative Dispute Resolution – voluntary, requires consent order, includes mediation, arbitration.
Why use the Tribunal instead of courts?
More affordable, quicker, less reputational risk.
What happens after a complaint is filed with the Commission or Panel?
It must be investigated (s169); if valid, actions include compliance notices (s171).
What happens if a compliance notice is ignored?
Commission may seek fines or prosecution; objections can be made to Tribunal or Court.
What is the typical fine amount?
R1 million or 10% of turnover, whichever is greater.
What are examples of remedies and sanctions under the Act?
Damages, interdicts, criminal sanctions.
What is the basis for claiming damages (s218(2))?
Anyone suffering loss from a contravention may claim damages.
When can a director be liable for damages?
If they act without authority, intentionally, or negligently (s77(2), (3)).
What is an interdict and when can it be used?
A court order to stop/continue actions inconsistent with the Act (ss20(4), 65(5)).
What are some criminal offences?
S26(9), S28(3), S29(6), S214, S215, S32(5), S216 – involving company records, misleading financials, fraud, and confidentiality.
