THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  534/10
In the matter between:

MATOLWANDILE BONGA MDA                                                           Appellant

and

THE LAW SOCIETY OF THE CAPE OF GOOD HOPE                     Respondent

Neutral citation:   Mda v The Law Society of the Cape of Good Hope
(534/2010) [2011] ZASCA 145 (26 September 2011).

Coram:
Brand, Cachalia, Malan, Majiedt and Seriti JJA
Heard:
15 September 2011
Delivered:
26 September 2011

Summary:
The authority of council of the Law Society to inspect, under
s 70(1) of the Attorneys Act 53 of 1979, ‘any book, document,
record or thing’ pertaining to a practice, or to inspect the
‘accounting records’ under s 78(6) framed widely – not limited
only to documentary material pertaining to specific complaint
against practitioner.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Eastern Cape High Court, Mthatha (Petse ADJP and Miller J
sitting as full bench):

(1)
The appeal is dismissed with costs.

________________________________________________________________

JUDGMENT
________________________________________________________________

CACHALIA JA (Brand, Malan, Majiedt and Seriti JJA concurring):

[1] This is an appeal against an order of a full bench of the Eastern Cape
High Court sitting at Mthatha (Petse ADJP, Miller J concurring) ordering the
appellant, Mr Matolwandile Bonga Mda, to make the accounting records of his
attorney’s practice available for inspection by the Law Society of the Cape of
Good Hope. The appeal comes before us with leave of the high court. The
circumstances under which the Law Society asserts a right to inspect Mr Mda’s
records are these.

[2] Mr Mda has not had a happy relationship with the Law Society. He has, on
fifteen occasions, been found guilty of unprofessional conduct pursuant to
internal disciplinary proceedings conducted in terms Rule 15 of the Rules of the
Law Society of the Cape of Good Hope. The Law Society is considering
instituting disciplinary proceedings against him for five other matters. One of
these relates to a complaint arising from a claim that Mr Mda was instructed to
pursue on behalf of Mr Dlokweni against the Road Accident Fund (the RAF) in

about 1996. In 2005, Mr Dlokweni lodged a complaint with the Law Society
against Mr Mda regarding his claim. This was after Mr Dlokweni had learnt that
the RAF had paid his claim to Mr Mda three years earlier, in 2002, and Mr Mda
could not account for the money. At Mr Dlokweni’s instance the Law Society
wrote to Mr Mda to establish what had happened, but received no satisfactory
response.

[3] Early in April 2006 Mr Mda informed the Law Society that he could not
locate Mr Dlokweni’s file. He promised to respond by 21 April 2006, but failed to
do so. He then gave another undertaking to answer the query by 14 July 2006.
Again, no response was forthcoming. The Law Society wrote further letters – the
last on 4 January 2007 – but elicited no response. When he did finally answer, on
24 August 2007, the Law Society was still not satisfied with his explanation.

[4] On 11 July 2007 the Law Society addressed a letter to Mr Mda to inform
him that a ‘forensic audit’ of his practice was to be conducted as envisaged in
s 70(1), and s 78(5) of the Act, and that PDP Pretorius Dondashe (the auditors)
had been authorised to do this. It explained that this was required to satisfy itself
that the practice was keeping proper accounting records in compliance with
s 78(4), and to decide whether or not disciplinary proceedings under s 70(1) were
warranted. Mr Mda requested information on the ambit of the investigation. On
15 August 2007 the Law Society answered by letter informing him that four other
complaints by his clients against him were being considered, in addition to Mr
Dlokweni’s. The first two complaints concerned an alleged failure on his part to
respond to requests for information from his clients to provide progress reports to
them about their matters; the third was that he had allegedly not paid arrear rates
and taxes to a municipality in respect of a property despite having promised to do
so; and the last complaint concerned a matter involving the transfer of a property
for which he had received an instruction ten years earlier, but had allegedly not
reported on its progress, and then resisted attempts by the complainant to have
the file removed from him.

[5] Mr Mda avers that he attended to all these complaints and that there is no
basis for a wide-ranging investigation into the affairs of his practice. Despite
adopting this stance he initially appeared willing to assist the auditors with their
investigation, but then demurred. The Law Society demanded his co-operation,
threatening to institute proceedings to compel him to co-operate if necessary.
With no adequate response forthcoming from him, the Law Society launched the
proceedings that are the subject of this appeal.

[6] The essential dispute before the high court, as before us, concerns the
ambit of the investigation that the Law Society may undertake. Mr Mda accepts
that the five complaints in issue, if proved, could amount to ‘unprofessional,
dishonourable or unworthy conduct’ as the Act envisages. But, he contends, the
Law Society may only demand information concerning the five complaints
mentioned above: it may not conduct a general forensic audit of his practice for
the purpose of enquiring into allegations of misconduct on his part. In support of
his contention he submits that ss 70(1) and 78(5), upon which the Law Society
purports to rely to conduct a wide-ranging investigation into the affairs of his
practice, do not authorise this. Instead, so the submission goes, s 70(1) permits
the Law Society only to inspect material pertaining to specific complaints against
him, and s 78(5), only to inspect accounting records concerning his trust account
– nothing else. It is therefore necessary to consider the ambit of these provisions.

[7] Law Societies have, among their objects, the responsibility to uphold the
integrity of practitioners1 and ensure that the standards and control of their
professional conduct2 are maintained. This task falls to a council, which runs the
affairs and exercises the powers of a society.3 Among the powers given to a
council to achieve these objects is s 71, which sanctions an enquiry into
allegations of ‘unprofessional or dishonourable or unworthy conduct’ on the part
of a practitioner. To decide whether or not an enquiry should be held a council

1 Section 58(e).
2 Sections 58(f) and (g).
3 Section 60.

may use s 70(1)4 to inspect ‘any book, document, record, or thing’ pertaining to a
practice. There is no limit to the ambit of the inspection.

[8] A council may also, under s 78(5)5, satisfy itself that a practitioner’s trust
accounts are in order by inspecting the ‘accounting records’ of the practice. In
this regard it must be noted that s 78(6)(d)6 makes clear that ‘accounting records’
is of wide import and includes ‘any record or document’ under the custody and
control of a practitioner relating to the practice. So whether a council is
considering a possible professional misconduct enquiry under s 70(1), or the
supervision of a practitioner’s trust accounts under s 78(5), both provisions
expressly permit the council to inspect all the records and documents concerning
the practice. It is on this basis that the high court found that the Law Society was
entitled to conduct the envisaged inspection.

[9] In my view the high court was correct in its conclusion. Concerning
Mr Mda’s submission that s 70(1) permits a council to inspect documentary
material pertaining only to specific allegations of misconduct, this cannot be so.
As I have indicated above, the section does not limit a council’s authority when it
is deciding whether or not to hold a misconduct enquiry. However, once the

4 ‘Council's power of inspection
(1) A council may for the purposes of an enquiry under section 71 or in order to enable it to
decide whether or not such an enquiry should be held, direct any practitioner to produce for
inspection, either by the council itself or by any person authorized thereto by the council, any
book, document, record or thing which is in the possession or custody or under the control of
such practitioner and which relates to his practice or former practice.’
5 ‘Trust accounts . . .
(5) The council of the society of the province in which a practitioner practises may by itself or
through its nominee, and at its own cost, inspect the accounting records of any practitioner in
order to satisfy itself that the provisions of subsections (1), (2), (2A), (3) and (4) are being
observed, and, if on such inspection it is found that such practitioner has not complied with such
provisions, the council may write up the accounting records of such practitioner and recover the
costs of the inspection or of such writing up, as the case may be, from that practitioner.’
6 ‘(6) For the purposes of subsections (4) and (5), 'accounting records' includes any record or
document kept by or in the custody or under the control of any practitioner which relates to –
(a)   . . .
(b)   . . .
(c)   . . .
(d)   his practice.’

council has decided to hold an enquiry, ss 71(2)(a)(i) and (ii) require any person
who is summoned to testify to produce any documentary material that has a
bearing on the subject matter of the enquiry.7 Section 71(2) is concerned only
with documentary material that may be relevant to an enquiry. Section 70(1), on
the other hand, has a specific purpose, which is to place a council in a position to
decide whether or not to hold an enquiry. This is why the legislature permitted a
broader inspection under s 70(1) than it did under s 71(2).

[10] There is also no merit in Mr Mda’s objection to the Law Society relying on
s 78(5), which he maintains may be used only to police trust accounts, and not to
investigate misconduct. If this contention were correct it would mean that a
council may not request documentary material regarding any allegation of
misconduct when it concerns a practitioner’s failure to keep proper accounting
records, which is absurd. This is why s 78(6) in terms authorises inspection of
more than merely the ‘accounting records’ of a practice.

[11] Moreover, the facts of this case demonstrate why Mr Mda’s objection to
the Law Society’s use of the relevant provisions is untenable. One of the
allegations against Mr Mda is that he may have misappropriated monies that
were due to Mr Dlokweni. On the face of it this allegation, if proved, would
amount to a failure to keep proper accounts under s 78, and also to misconduct
as envisaged in s 71. It would also be a criminal offence. In addition, as I have
mentioned, Mr Mda has four other complaints pending against him and a dubious
disciplinary record. There are, therefore, clear grounds for the Law Society to

7 Section 71(2)(a)(i) reads: ‘Enquiry by council into alleged cases of unprofessional or
dishonourable or unworthy conduct . . .
(2) (a) For the purposes of an enquiry under subsection (1), a council may –
(i)   under the hand of the president or the secretary of its society, summon any person who in the
opinion of the council may be able to give material information concerning the subject matter of
the enquiry or who is believed by the council to have in his possession or custody or under his
control any book, document, record or thing which has any bearing on the subject matter of the
enquiry, to appear before it at a time and place specified in the summons, to be interrogated or to
produce that book, document, record or thing, and may retain for inspection any book, document,
record or thing so produced; . . .’

invoke both ss 78(6) and 70(1), so that a thorough inspection of his practice may
be conducted.

[12] For all these reasons the appeal must fail. The appeal is, therefore,
dismissed with costs.

_____________
A CACHALIA
JUDGE OF APPEAL

APPEARANCES

For Appellant:
T M Ntsaluba

Instructed by:

Jolwana Mgidlana Inc, Mthatha

Nonxuba Inc, Bloemfontein

For Respondent:

A A Brink (Attorney)

J F Heunis & Associates, Mthatha

Webbers Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
26 September 2011

STATUS: Immediate

MDA V THE LAW SOCIETY OF THE CAPE OF GOOD HOPE (534/10)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today dismissed the appeal with costs.

The appeal was against an order of a full bench of the Eastern Cape High Court,
sitting at Mthatha (Petse ADJP, Miller J concurring) ordering the appellant to make
his accounting records of his attorney’s practice available for inspection by the Law
Society of the Cape of Good Hope.

The essential issue before the SCA concerned the ambit of the investigation that the
Law Society may undertake, in terms of s 70(1) of the Attorneys Act 53 of 1979. The
appellant contended that the Law Society may not conduct a general forensic audit
of his practice for the purpose of enquiring into allegations of misconduct on his part.
In support of the latter contention the appellant submitted that ss 70(1) and 78(5),
upon which the Law Society purported to rely to conduct a wide-ranging
investigation into the affairs of his practice, do not authorise this. Instead, he
submitted, s 70(1) permits the Law Society only to inspect material pertaining to
specific complaints against him, and s 78(5), only to inspect accounting records
concerning his trust account, nothing else. The SCA stated that whether a council is
considering a possible professional misconduct enquiry, under s 70(1), or the
supervision of a practitioner’s trust accounts, under s 78(5), both provisions
expressly permit the council to inspect all the records and documents concerning the
practice. The SCA disagreed with the appellant’s submission on s 70(1), stating that
the section has a specific purpose, which is to place a council in a position to decide
whether or not to hold an enquiry, which is why the Legislature permitted a broader
inspection under s 70(1) than it did under s 71(2). The SCA held that there was also
no merit in the appellant’s objection to the Law Society relying on s 78(5), for if his

contention were correct it would mean that a council may not request documentary
material regarding any allegation of misconduct when it concerns a practitioner’s
failure to keep proper accounting records, which would be absurd. This is why the
section authorises inspection of more than merely the ‘accounting records’ of the
practice. There were clear grounds for the Law Society to invoke both ss 78(6) and
70(1), so that a thorough inspection of the appellant’s practice could be conducted
and the SCA dismissed the appeal with costs.

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