2
2 Kruger Ranch was not represented at the hearing by the trust account
advocate who instituted the application on its behalf, a Ms. Simelane. Ms.
Simelane’s absence from the hearing was not adequately explained. Ms.
Makula, who placed herself on record for Kruger Ranch, first suggested that
Kruger Ranch was represented by a firm of attorneys, which, despite never
having placed itself on record, had briefed her to motivate the application for
leave to appeal. Ms. Makula then changed tack and informed me that Ms.
Simelane had in fact briefed her to appear. As a trust account advocate, Ms.
Simelane was required to prosecute the application for leave to appeal
personally, and could not have absented herself from the hearing without the
prior consent of her client. Ms. Makula’s apparent inability to explain why she
was arguing the application instead of Ms. Simelane naturally raised the
question of whether Ms. Simelane had improperly failed to appear.
3 Both the main application and the application for leave to appeal were wholly
misconceived, and had been poorly litigated. I took Ms. Simelane’s
unexplained absence as another example of the very low standards to which
Kruger Ranch’s legal representatives had held themselves. I directed Ms.
Simelane to explain her absence on affidavit by no later than 20 February
2026, and in doing so to show cause why she should not pay the costs of the
application for leave to appeal de bonis propriis. I gave the respondents leave
to file an affidavit in response by no later than 6 March 2026.
4 In due course Ms. Simelane filed her affidavit, and the respondents filed their
answer. Then Ms. Simelane filed a further affidavit, without my leave, on 12
March 2026. I have not considered the contents of that affidavit, since it was
3
not provided for in my order of 5 February 2026, and no application to
introduce it was brought.
5 In her affidavit of 20 February 2026, Ms. Simelane said that she had not
appeared to argue the application for leave to appeal because of a “diary
clash” with another court appearance, but that she had secured the consent
of the person who had instructed her on Kruger Ranch’s behalf, a Mr. Clinton
Kruger, to brief Ms. Makula to motivate the application . Mr. Kruger confirmed
this on affidavit.
6 In light of this, and even though the confused explanation given for Ms.
Simelane’s absence on 5 February 2026 created the reasonable impression
that she might improperly have absented herself, there is no basis on which
to conclude that Ms. Simelane acted unethically in passing on to Ms. Makula
the brief to appear in the application for leave to appeal. In those
circumstances, there is no reason to mulct Ms. Simelane in costs.
7 Both the first respondent, ABSA, and the third respondent, Ms. Mahanyele,
urged me to conclude that Ms. Simelane’s absence, and the unfortunately
befuddled explanation given for it, was yet another iteration of the poor
judgement with which the main application and the application for leave to
appeal were pursued. While I am sympathetic to that argument, I declined to
order costs against either Mr. Kruger or Ms. Simelane on that basis in my
judgment on the main application, and I do not think it would be right to do so
now, simply because leave to appeal was sought against my order (in this
respect see Ferguson v Rhodes University 2018 (1) BCLR 1 (CC), paragraph
26)
4
8 Ms. Mahanyele emphasises that the only alternative to an order de bonis
propriis against Mr. Kruger or Ms. Simelane is that the costs of the application
for leave to appeal will have to be costs in the winding up. That may effectively
mean the reduction of the pool of resources available to pay Kruger Ranch’s
creditors.
9 Again, I have some sympathy for that complaint. But I must assume that the
possibility that a company director may litigate in a liquidated company’s name
and incur costs orders against that company which may ultimately impoverish
the company’s creditors was foreseen when the Supreme Court of Appeal
decided, in WAA Gouws (Johannesburg) v HR Computek (Pty) Ltd 2025 (6)
SA 89 (SCA), that a liquidated company can, after all, bring an application to
set aside orders for its own winding-up, and that its erstwhile directors may do
so on its behalf without the consent or the assistance of the company's
appointed liquidator.
10 It may seem, at first blush, that one of the purposes of 354 (1) of the
Companies Act 61 of 1973 is to prevent such an occurrence, and to ensure
that directors of a company themselves bear the risk of an adverse costs order
if they elect to bring an application to set aside a winding up order. But the
decision in Gouws now permits a director to do so, apparently at the
company’s risk. While a court retains the power to order a director to pay legal
costs that would normally be payable by the company itself, that power is only
exercised in extraordinary circumstances, such as the breach of a director’s
fiduciary duties, or where it can be shown that the director has acted in breach
of the Companies Act itself, or where the litigation has been pursued for a