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[2026] ZAGPJHC 668
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Lady Luck Trading 2 CC t/a Waterford Carriers v African Border Management (Pty) Limited and Others (Leave to Appeal Application) (24140/2019) [2026] ZAGPJHC 668 (10 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Numbers: 24140/2019
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/ NO
(3)
REVISED:
YES
/ NO
In
the matter between:
LADY
LUCK TRADING 2 CC t/a WATERFORD
CARRIERS
Applicant
And
AFRICAN
BORDER MANAGEMENT (PTY)
LIMITED
First Respondent
AFRICAN
SPIRIT TRADING 103 (PTY) LIMITED
t/a
PXL FREIGHT AND LOGISTICS
Second Respondent
BALLOT,
JOHN GEORGE
Third Respondent
BROWN,
BERNICE
Fourth Respondent
JUDGMENT IN THE LEAVE
TO APPEAL APPLICATION
MALINDI,
J
Introduction
[1]
This is an application for leave to appeal against the whole of the
judgment and order which I delivered on 20 February
2026, declaring
that the third and fourth respondents in the main application are
jointly and severally liable, together with the
first and second
respondents to the application, in the two amounts owed to the
applicant by the first and second respondents.
The costs order is
also appealed against.
[2]
For convenience, the parties are henceforth referred to as in this
application for leave to appeal.
[3]
The
applicants submit, first, that I erred in accepting that the
allegations before Twala J, who granted prayers 1 and 2 of the
notice
of motion in the main application, as established facts, whereas the
orders were obtained by default. In other words, it
is submitted that
as the allegations were not subjected to the
Plascon-Evans
Rule
[1]
it cannot be said that the applicants did not have a version to be
weighed against the respondent’s version.
[4]
Mr C Rip, for the applicants, concedes that Twala J would not have
granted the order if not supported by the papers before
him. Mr
Pottas, for the respondent, submits that, further to this concession,
the same facts were repeated before this court, together
with further
allegations by the respondent. Therefore, that this court reached its
decision not only on the basis of the allegations
or facts before
Twala J.
[5]
Secondly,
the applicants submit that I attributed the statements in
Ex
Parte Gore and Others NNO
[2]
at paragraph [4] to what was held by Twala J. This submission is
mistaken. Paragraph [9] of my judgment means that the orders granted
by Twala J could only be granted because he was satisfied that the
test for declaring that the requirements of section 20(9) have
been
met as set out in
Gore
is satisfied. This is so because, though the orders were granted by
default, Twala J had to be satisfied that such orders are justified,
or a case is made there for on papers before him. His orders, which
could only be granted on the application of the
Gore
principle, have not been challenged or set aside.
[6]
Thirdly, the applicants submit that paragraph [16] of my judgments is
erroneous because on the facts before Twala J and
before me, the
respondent had not made out a case for reckless conduct of the
applicants' businesses, let alone fraudulent conduct
as contemplated
in
Gore
, or that the two companies were the applicants, alter
egos. Paragraph [16] of my judgment is clear that I considered, among
others,
that holding himself out as the managing director of both
companies when he was not a managing director of African Border
Management,
to be recklessness, short of fraudulent trading. This is
in addition to ordering one company to pay the debts of the other,
with
total disregard of their separate legal identities.
[7]
The
applicants rely on
Hulse-Reutter
and Others v Godder
[3]
for the proposition that the piercing of the corporate veil can only
follow where “as a matter of principle… there
must at
least be some misuse or abuse of the distinction between the
corporate entity and those who control it which results in
an unfair
advantage being afforded to the latter.” In this case, the
applicants seek the benefit of escaping liability for
the debts owed
by their companies to the respondents in circumstances where Twala J
has, in effect, declared that the two companies
have disregarded
their separate legal entities or juristic personalities with the
collusion of the applicants. It is unconscionable
abuse of the two
companies, juristic personalities, by the applicants to have used
them as they did. They treated them as their
alter egos.
[8]
Paragraphs [29] – [33] of my judgement make it clear that
section 20(9) of the Companies Act embraces principles
further
applied to “
piercing
”, “
lifting
”
or “
look behind”
the corporate veil. It is the
circumstances of each case that will dictate whether juristic
personality between interrelated companies
and between a corporation
and its directors and shareholders has been abused. It becomes
irrelevant where the conduct is reckless
trading, fraud or other
violations of statutory provisions for holding a juristic person true
to the prescripts of the law. At
paragraph [34] of
Gore,
it
was stated:
“
The provision
brings about that a remedy can be provided whenever the illegitimate
use of the concept of juristic personality adversely
affects a third
party in a way that reasonably should not be countenanced
.”
[9]
Section
20(9) is supplemental to the common law and not substitutive, and it
is not only granted in the absence of any alternative
remedy.
[4]
[10]
In the circumstances, I do not agree with the applicants that the
judgment conflated concepts of piercing the corporate
veil with the
application of section 20(9) and that a selection had to be made
based on one of them.
Order
[11]
Therefore, the following order is made:
1. The application
for leave to appeal is dismissed.
2. The applicants
are to pay the costs, including the costs of counsel on Scale B.
G
MALINDI
Judge
of the High Court,
Johannesburg
Appearances
For
the Applicant:
Adv R Pottas
Instructed
by:
Duff
& Associates
For
the 3
rd
and 4
th
Respondents:
Adv CM Rip
Instructed
by:
Lautenberg
Morris Attorneys
Date
of Hearing:
26 February 2024
Date
of Judgment:
20 February 2026
Date
of leave to appeal hearing:
8 June 2026
Date
of leave to appeal judgment:
10 June 2026
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] (3) SA 623 (A).
[2]
2013 (3) SA 382 (WCC).
[3]
2001 (4) SA.
[4]
Gore
at [34].