application to rescind the winding -up order. I refused the
interim interdict because the applicant had not
demonstrated a prima facie right to rescind the winding -up
order. In the application for leave to appeal, none of the
various findings of fact or of law on which I reached that
conclusion were challenged . There were really only two
points of any substance.
The first was that , even though I found that there was
no prima facie right to restrain the implementation of the
winding up order, I had not considered the other three legs
of the interim interdict test: where the balance of
convenience lies, whether harm has been actually
sustained, or is reasonably apprehended , and whether the
applicant has an other effective remedy . The suggestion
seems to have been that I was mistaken in consider ing only
whether the applicant had demonstrated a prima facie right
to the recission relief.
That point is transparent ly without merit. I f an
applicant for an interim interdict cannot show a prima facie
right at all, then it does not matter where the analysis might
end up on the other three legs of the test. In other words,
an interim interdict cannot be granted where there is no
right at all – not even a prima facie right – to the final relief
sought. My conclusion that no right had been shown
disposed of the entire application.
There was, secondly, an allegation of bias. The
allegation was difficult to understand. In the first place, no
application for my recusal and no allegation of bias was
made at the hearing of the matter a quo . Insofar as I can
work out , the substance of the allegation in the application
for leave to appeal is that I appeared to “raise points on
behalf of the respondents” during argument a quo. I am not
sure what that means, since the points I was alleged to
have raised were all matters dealt with by the respondents
themselves in their papers. Those points were not “raised”
on the respondents’ behalf. They were mentioned to
facilitate a thorough hearing of the issues outlined on the
papers. There was nothing to suggest that I had prejudged
the result, or that a reasonable person observing the
proceedings would have thought that I prejudged the result.
Moreover, Ms Makula, who motivated the application for
leave to appeal , chose not to advance the allegation of bias
in the notice of application for leave to appeal. For those
reasons, the allegation of bias is without merit.
There is, as far as I can see , nothing else in the
application for leave to appeal, other than a reassertion of
the arguments advanced on behalf of the applicant a quo. I
have dealt with those arguments in my judgment a quo, to
which I have nothing to add. There is, in my view, no
prospect of a court of appeal reversing or materially altering
the order I made. T he application for leave to appeal will be
dismissed.
I now turn to a rather unfortunate matter that arose
when the application for leave to appeal was called today.
The applicant was represented in the court a quo by a
Ms Simelane, who is a Trust Account Advocate briefed
directly by the applicant . The application for leave to appeal
was signed by Ms Simelane, as was the notice setting down
the application for leave to appeal.
As a Trust Account Advocate, Ms Simelane was
perfectly entitled to discharge the function s of both an
attorney and an advocate on the applicant’ s behalf . She
was also entitled to sign the notice of set down and the
application for leave to appeal , and to do all other things
that an attorney would ordinarily do to prosecute the
application.
But those entitlements bring obligations with them.
Where acting for a lay client, a Trust Account Advocate’s
principal obligation is to deal personally with their client’s
case. In other words, a Trust Account Advocate may not
pass the obligation to appear before a court on their client’s
behalf to another practitioner without the client’s consent.
When the matter was called this morning, I expected
to see Ms Simelane ready to argue the application. But Ms
Simelane did not appear. Instead, a Ms Mak ula placed
herself on record. Ms Mak ula is a referral advocate. It was
not initially clear whether Ms. Makula was briefed by an
attorney or by Ms Simelane herself. Certainly, no attorneys
have come on record for the applicant, either in the main
application, or in the application for leave to appeal.
In response to questions from me, Ms M aku la first
said that she had been briefed by a firm of attorneys. She
then said that she had in fact been briefed by Ms Simelane.
But a Trust Account Advocate is not entitled to brief another
advocate to stand in for them without the express prior
consent of their lay client . I have seen no evidence of such
consent, and Ms Makula’s apparent confusion about who
had briefed her raises the question of whether Ms Simelane
misconducted herself in failing to appear before me today
and then purporting to brief someone else to do so.
I have already remarked in my judgment a quo that
the facts and evidence advanced in support of the
application a quo were exceedingly thin and that the way
the case was litigated left a great deal to be desired.
Ms Simelane’s failure to appear before me today
prima facie compounds the lack of competence and
professionalism with which this matter has been pursued. It
also placed me, and the respondents, in the invidious
position of having to wor k out whether the applicant was
actually represented before us.
There was no evidence on record that the applicant
had briefed a firm of attorneys. Nor was there any indication
before the matter was called that Ms Simelane would not be
appearing personally. Since no attorneys who could have
briefed Ms Makula had actually been instructed by the
applicant, and since Ms Simelane was not entitled to brief a
referral advocate to stand in for her without the applicant’s
consent – which was not in evidence – purely at the
technical level, the applicant may have been unrepresented
today.
For all those reasons, I think it is appropriate to ask
Ms Simelane explain the situation, and, in so doing, to show
cause why she should not in her personal capacity pay the
costs occasioned by the application for leave to appeal. I
propose to do so by affording her until 20 February 2026 to
place on affidavit such considerations as may be relevant to
my decision as to whether to mulct her in those costs .
Either of the respondents appearing before me may respond
to that affidavit by no later than Friday, 6 March 2026.
Thereafter, I will either give judgment or directions for a
further hearing.
I make the following order.
1 The application for leave to appeal is dismissed.
2 The trust account advocate who appeared for the
applicant in the court a quo, Ms. Simelane, is