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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 2659/2020
(1) REPORTABLE : N
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED.
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DAT~........... SIGNATUR
In the matter between:
NKONDO PHAMELA CLINTON Applicant
and
LIMPOPO PROVINCIAL LEGAL COUNCIL Respondent
JUDGMENT
MATHABATHE AJ
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Introduction
[1] In this application the applicant (Nkondo Phamela Clinton) seeks reviewing and
setting aside the decision of the respondent to have him suspended from practice as
a legal practitioner1. In paragraph 5 of the founding affidavit the applicant stated that"
the purpose of this application is to have certain processes , reports, decisions and/
or resolutions of the applicant and its concomitant committees reviewed and set
aside2".
[2] The applicant in notice of motion seeks various 18 prayers amongst others, the
appointment of Mr. Ashwin Reddy ("Mr. Reddy") as investigator, that investigation
conducted by Mr. Reddy and report dated 30 July 2019, be review and set aside.
The applicant also seeks reviewing and setting aside the resolution of 24 February
2020 and all steps taken pursuant thereto, reviewing and setting aside the charge
sheet dated 4 April 2021, investigation report dated 27 May 2021, charge sheet date
4 April 20223.
[3] The LPC is a body corporate with full legal capacity established in terms of s 4 of the
Legal Practice Act 28 of 2014 (the LPA). It came into effect on 1 November 2018
and exercised jurisdiction over all legal practitioners .
[4] I must say that this is "broadly" a review application because, when regard is had to
the papers, the issues are convoluted by extensive peripheral in-formation which
makes it difficult to ascertain precisely what the applicant seeks.
[5] The issue to be determined is whether, applicant has indeed established that he is
entitled to the relief that he seeks.
1 Applicant's line 1.1. of Heads of argument
2 Page 11 para 5 of the notice of motion.
3 Page 1-3 of the notice of motion.
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Factual Background
[6] The applicant was admitted as an attorney on 25 November 2013. He soon
thereafter commenced practicing as a sole practitioner for his own account under the
name and style of Nkondo Attorneys , in Polokwane (the firm). The Legal Practice
Council received complaints against the applicant. The complaints relate inter alia to
the misappropriation of monies entrusted to the applicant and failure to account to
clients. Legal Practice Council instructed a Chartered Accountant , Mr. Reddy
(Reddy), to conduct an inspection of the accounting records and the affairs of the
firm and to investigate the complaints .
[7] On 30 July 2019, Mr. Reddy compiled a report of his investigation . In his
investigation report page 2 paragraph 3 "Mr. Nkondo was furnished with a copy of
my mandate as well as a letter dated 24 June 2019 which specified the accounting
record required for the inspection . I proceeded to explain the reason for the
inspection. Mr. Nkondo signed a copy of my mandate as well as a later dated 25
June 2019 as a proof of having received the same".
[8] Based on Mr. Reddy's investigation report, on 24 February 2020 the LPC took
resolution for the suspension of the applicant from practice as a legal practitioner
and authorised then chairperson and/or any other member of the Executive
Committee to apply and signed necessary document to give effect to the resolution
on behalf of the Council,
[9] On 5 May 2020, the LCP launched an urgent application for suspension of the
applicant and subsequently on 26 May 2020, the matter was heard before then
Judge President Makgoba , the applicant was suspended from practice as attorney
pending determination of part B, which still pending before another Court. The court
noted that the Court order of the applicant's suspension still stand neither challenge
in the proceedings.
[1 OJ It is unnecessary to set out in detail the transgressions which led to the suspension
of the applicant as he does not deal with them individually . There were eight
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complaints levelled against the applicant. Most dealt with unprofessional conduct
and theft of trust money.
[11] On 4 December 2023, the applicant launched this review application before this
court. I noted both the notice of motion and the founding affidavit does not address
the issue of condonation for late launching review application and the applicant's
suspension order dated 26 May 2020.
[12] The central issue in this matter is whether is the applicant contended that attacking
the decision of the LPC and its finding in respect of the Reddy's appointed by the
respondent, in that Reddy is neither a practicing attorney or advocate and therefore
ineligible for appointment as investigator , for the present purpose, therefore unlawful
investigation and report.
[13] The applicant's counsel during court proceedings and in their heads of argument rely
on Rule 38.4 of the Legal Council Rules, which disqualify Reddy to be appointed as
investigator . I disagree with the applicant's counsel; Mr. Reddy was appointed to
inspect the accounting records of any trust account practice in order to satisfy itself
that the provision of section 86 and 87 of the Act and the accounting rules issued by
the Council are being complied with.
Grounds of review considered
[14] Before each ground may be considered , it suffices to reflect on some important legal
principles which find application in this matter. It is common cause that this Court is
called upon to review a decision of a body statutorily authorised to do what it did.
There can be no doubt that the Tribunal is a specialised body laden with certain
expertise or specialties. Regulation 3(8)(b) specifically provides that the Tribunal
consists of three independent medical practitioners with expertise in the appropriate
areas of medicine, appointed by the Registrar. Clearly, a Tribunal is a specialised
body, which will require to apply its expertise in the areas of medicine.
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[15] The proper approach to be adopted in a review of such bodies was considered in
Canadian Union of Public Employees Local 963 v Brunswick Liquor Corporation
(CUPE)4, where the Supreme Court of Canada held that judges should not have the
last word on all administrative interpretations of law, but should sometimes intervene
only when the agency interpretation is irrational. The CUPE decision was followed
by the Supreme Court of Canada in the matter of Dunsmuir v New Brunswick
(Dunsmuir)5. The Supreme Court of Canada stated that in order to establish whether
deference should be accorded and a reasonableness test to be applied, the
following factors play a role; (a) putative clause -this is a statutory direction from
Parliament or legislature indicating the need for deference; (b) a discrete and special
administrative regime in which the decision maker has special expertise; and (c) the
nature of the question of law.
[16] The learned Schutz JA in Minister of Environmental Affairs and Tourism and Others
v Phambili Fisheries (Pty) Ltd and Another (Phambili)6 stated the following:
"Judicial deference is particularly appropriate where the subject matter of an
administrative action is very technical or of a kind in which a court has no
particular proficiency."
[17] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others (Bato
Star)7, it was emphasised that the Court should take care not to usurp the functions
of administrative agencies. The task of the Court is to ensure that the decisions
taken by administrative agencies fall within the bounds of reasonableness as
required by the Constitution. The Court, in Bato Star, emphasised that a Court
should be careful not to attribute to itself superior wisdom in relation to matters
entrusted to other branches of government. At the same time, a Court must not
function as a rubber stamp of administrative tribunals. When deference is accorded,
it is not a sign of timidity but rather a recognition of the principle of separation of
powers. In Trencon Construction (Pty) Limited v Industrial Development Corporation
4 [1979] 2 SCR 227.
5 [2008] 1 S.C.R 190.
62003 (6) SA 407 (SCA) at para 53.
7 004 (4) SA 490 (CC).
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of South Africa Ltd and Another (Trencon)8 the approach in Bato Star was endorsed .
Additionally , the Court stated that indeed the idea that Courts ought to recognise
their own limitations still rings true. Such a stance is informed not only by the
deference Courts have to afford an administrator but also by the appreciation that
Courts are ordinarily not vested with the skills and expertise required of an
administrator. With specific reference to the functions of the Tribunal, medical
expertise are required for the Tribunal to either confirm or reject a SIAR.
Undoubtedly, a Court is bereft of medical expertise required in the assessment
process.
Legal Framework
[14] Rule 50 of the Legal Practice Council rules deal with inspection of accounting
records.
14.1 Rule 50.1 deals with authority to conduct inspection
"Rule 50.1.1 provide that the Board may at any time, itself or through its
nominee, or through nominee of the Council acting on behalf of the Board and
at its own cost and on its own initiative, inspect the accounting records of any
trust account practice in order to satisfy itself that the provision of section 86
and 87 of the Act and the accounting rules issued by the Council are being
complied with".
14.2. Trust accounts
Section 86. (1) Every legal practitioner referred to in section 84(1) must
8 2015 (5) SA 245 (CC). operate a trust account.
(2) Every trust account practice must keep a trust account at a
bank with which the Fund has made an arrangement as
provided for in section 63(1 )(g) and must deposit therein, as
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soon as possible after receipt thereof, money held by such
practice on behalf of any person.
(3) A trust account practice may, of its own accord, invest in a
separate trust savings account or other interest-bearing account
any money which is not immediately required for any particular
purpose.
(4) A trust account practice may, on the instructions of any person,
open a separate trust savings account or other interest-bearing
account for the purpose of investing therein any money
deposited in the trust account of that practice, on behalf of such
person over which the practice exercises exclusive control as
trustee, agent or stakeholder or in any other fiduciary capacity.
(5) Interest accrued on money deposited in terms of this section
must, in the case of money deposited in terms of.-
(a) subsections (2) and (3), be paid over to the Fund and
vests in the Fund; and
(b) subsection (4), be paid over to the person referred to in
that subsection : Provided that 5% of the interest accrued
on money in terms of this paragraph must be paid over to
the Fund and vests in the Fund.
(6) A legal practitioner referred to in section 84(1) may not deposit
money in terms of subsection (2), nor invest money in terms of
subsections (3) and (4) in accounts held at a bank which is not a
party to an arrangement as provided for in section 63(1)(g),
unless prior written consent of the Fund has been obtained.
(7) A legal practitioner referred to in section 84(1) must comply with
the terms of an arrangement concluded between a bank and the
Fund as provided for in section 63(1)(g).
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14.3 Accounting
Section 87 (1) A trust account practice must keep proper accounting records
containing particulars and information in respect of.-
(a)
(b)
(c) money received and paid on its own account:
any money received, held or paid on account of any
person;
money invested in a trust account or other interest
bearing account referred to in section 86; and
(d) any interest on money so invested which is paid over or
credited to it.
(2) (a) The Council or the Board may, itself or through its nominee, at
the cost of the Council or the Board, inspect the accounting
records of any trust account practice in order to satisfy itself
that the provisions of section 86 and subsection (1) are being
complied with.
(b) If on an inspection it is found that these provisions have not
been complied with, the Council or the Board may write up
the accounting records of the trust account practice and
recover the costs of the inspection and the writing up of the
accounting records from the trust account practice concerned.
(3) For the purposes of subsections (1) and (2), "accounting records"
include any record or document kept by or in the custody or under
the control of any trust account practice which relates to-
(a) money held in trust;
(b) money invested in terms of section 86(2), (3) or (4) and interest
thereon.
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(c) any estate of a deceased person or any insolvent estate or any
estate placed under curatorship , in respect of which an attorney in
the trust account practice is the executor, trustee or curator or
which he or she administers on behalf of the executor, trustee or
curator; or
(d) the affairs of the trust account practice.
(4) (a) Any money held in the trust account of a trust account practice in
respect of which the identity of the owner is unknown or which is
unclaimed after one year, must, after the second annual closing of the
accounting records of the trust account practice following the date
upon which those funds were deposited in the trust account of the trust
account practice, be paid over to the Fund by the trust account
practice.
(b) Nothing in this subsection deprives the owner of the money
contemplated in paragraph (a) of the right to claim from the Fund any
portion as he or she may prove an entitlement to.
(5) (a) Despite section 37(2)(a), any attorney or an advocate referred to in
section 34(2)(b) or an employee of a trust account practice must, at the
request of the Council or the Board, or the person authorised thereto
by the Council or the Board, produce for inspection a book, document
or article which is in the possession, custody or under the control of
that legal practitioner or such employee, which book, document or
article relates to the trust account practice or former trust account
practice of such attorney or advocate: Provided that the Council or the
Board or person authorised by the Council or the Board may make
copies of such book, document or article and remove the copies from
the premises of that attorney, advocate or trust account practice.
(b) The legal practitioner referred to in paragraph (a) or employee in
question may not, subject to the provisions of any other law, refuse to
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produce the book, document or article, even though he or she is of the
opinion that it contains confidential information belonging to or
concerning his or her client.
(6) Any person who performs any function under this section, may not
disclose any information which he or she obtained in the performance
of such a function except-
(a) for the purposes of an investigation or hearing by a disciplinary
body;
(b) to any person authorised thereto by the Council or the Board who
of necessity requires it for the performance of his or her functions
under this Act;
(c) if he or she is a person who of necessity supplies it in the
performance of his or her functions under this Act;
(d) when required to do so by order of a court of law;
(e) at the written request of the Ombud; or
(f) at the written request of the National Prosecuting Authority or any
competent authority which requires it for the institution of an
investigation with a view to the institution of any criminal prosecution .
14.4 Rule 50.2 deal with Inspections
Rule 50.2.1 The Board may appoint any person in the service of the Board,
or any other person qualified person, as an inspector to carry out inspection
terms of these rules
Rule 50.2.2 The Board may determine the remuneration to be paid to a
person who is appointed in terms of the rule 50.2.1 and who is not the full
time service of the Board.
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[15] The submission made by the applicant in relying on Rule 38.4 of the Legal Practice
Council Rules is dealing with the investigation committee established by the council,
to attack the appointment of Reddy, is misplaced . Reddy is appointed for inspection
of accounting records, to do investigation in terms of rule 50 of the Legal Practice
Council Rules, of any trust account practice in order to satisfy itself that the provision
of section 86 and 87 of the Act and the accounting rules issued by the Council are
being complied with. The applicant relied on investigation in terms of 37(2)(a) and
(b), that refers to Reddy as investigator is misplaced .
[16] The decision to appoint Reddy to conduct investigation into the applicant's firm
accounting records in terms of section 37(2)(a) and (b) does not constitute a
reviewable action.
[17] In Carte Blanche Marketing CC and Others v Commissioner for the South African
Revenue Service (26244/2015) [2020] ZAGPJHC 202; [2020] 4 All SA 434 (GJ);
2020 (6) SA 463 (GJ); 83 SATC 89 (31 August 2020) at par 66 "By selecting a
person for an audit an investigative process is set in motion, nothing more. The
initiation of an investigation does not constitute a decision which is capable of
review: simply put, it is not yet ripe for review as it is incomplete ".
[18] The applicant complains that the decision and/or resolution of the respondent to
apply for suspension of applicant , taken on 24 February 2020. In paragraph 1.5 of
the applicant took issue that the respondent approached court on extreme urgency
during May 2020 to give effect to resolution.
[19] According to Reddy's report and suspension application , the applicant conceded
amongst others misappropriating the monies he had received from his clients.
Money in a trust account is not the attorney's property, and any deposit must be
dealt with in accordance with the trust creditor's instruction . When trust monies are
paid to an attorney, it is his duty to keep it in his possession and to use it for no other
purpose than that authorized by his client. It is imperative that trust monies in the
possession of the attorney should be available to his client the instant it becomes
payable, and it must be kept in trust if it is not yet payable (Incorporated Law
Society, Transvaal v Behrman 1977 (1) SA 907 (T)).
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19.1 Section 43 of the LPA envisages that the Council resolution to institute the
legal proceedings should have been pursuant to a disciplinary body informing
the council that the disciplinary body is satisfied that the applicant has
misappropriated trust monies or is guilty of other serious misconduct. It can
be argued that contrary to what is contemplated in section 43 there was no
disciplinary hearing against the applicant, and he has not been found guilty of
any misconduct.
19.2 Section 44 of the LPA provides that the provisions of the LPA do not derogate
in any way from the power of the Court to adjudicate upon and make orders in
respect of matters concerning the conduct of a legal practitioner or a juristic
entity
19.3 Incidents of misappropriation of trust funds are always urgent and deserve the
earliest attention of the court in order to prevent further unjustified exposure of
the Legal Practitioners' Fidelity Fund, which may increase by the hearing of a
matter in the normal course.
19.4 In Law Society of the Cape of Good Hope v Budricks [2002] 4 ALL SA 441
(SCA), after surveying the relevant case law, the SCA quoted with approval
the decision of King JP (with Foxcroft J) in Cape Law Society v Parker 2000
(1) SA 582 (C) at 587 G-H that "the principle as it emerges from the cases, is
that the utilization of funds in a trust account without the authority of the
person on whose behalf the funds are held for purposes which do not benefit
him and in circumstances where he has not authorized such use, amounts to
misappropriation of trust monies, which in tum is a form of theft." The decision
of the court in Parker was itself based on precedent of considerable pedigree.
19.5 As early as the 19th century, the courts recognized that the misappropriation
of trust money amounts to theft. As Innes CJ concluded in Rex v Rorke 1915
AD 145 at 157, if an attorney deliberately misappropriated monies entrusted
to him for his own use "the jury was fully justified in concluding that such
misappropriation was fraudulent , and that he had committed the crime of
theft" (see also the comments of Chesiwe J in Macheka v S [2019] JOL 458
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22 (FB)). In Budricks , the SCA, reflecting on the interplay between
misappropriation and theft, confirmed the proposition that misappropriation
and theft in the context of the unauthorized use of trust funds by a legal
practitioner amounts to the same thing.
[20) The suspension and removal/striking off application constituted sui generis
disciplinary proceedings which becomes the Court's proceedings9. These
proceedings are merely referred to by the LPC to the Court. When the LPC
exercises its discretion to refer the alleged offending conduct to the Court for the
Court to make a decision on whether the practitioner should be suspended and or
removed/strike off as not being a fit and proper person to continue to practice as an
attorney, the exercising of such discretion does not constitute a decision within the
ambit of administrat ive action as defined in section 1 of PAJA.
20.1 The Courts, including the Supreme Court of Appeal (SCA), have repeatedly
pronounced that sui generis disciplinary proceedings are not normal civil
proceedings. The LPC (applicant) merely brings the attorney before Court by
virtue of a statutory right and informs the Court as to what the attorney has
allegedly done and asks the Court to exercise its disciplinary power. It does
not institute any action or civil suit against the attorney. It merely submits to
the Court facts which it contends constitute unprofessional , dishonourable
and unworthy conduct.
[21) A determination as to whether a decision constituted an administrative action is not a
simple exercise. Our courts have appreciated that to determine a power or function
is of a public nature is a difficult exercise. The Constitutional Court in Association of
Regional Magistrates of Southern Africa10 highlighted that in determining whether a
decision is reviewable in terms of power is context specific. It is not a mechanical
exercise where in a court would merely ask itself whether public powers being
exercised at a public function is being performed . The courts further expressed that
9 Legal Practice Council v Motlhabani (UM 148/2018) [2020) ZANWHC 76 (7 May 2020) par 25.
10 Association of Regional Magistrates of Southern Africa vs President of the Republic of South Africa [2013)
ZACC 13.
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in determining whether particular conduct constitutes administrative action the focus
must be on the nature of the power exercised rather than upon the functionary.
[22] At no stage did the LPC discipline, fine or suspend the respondent. The exercising of
a discretion to refer the respondent's conduct for the Court's determination of his
status as an officer of the Court, does not fall within the definition of administrative
action. So too does the exercise of the applicant's discretion not adversely affect the
rights of the applicant. It does not have a direct external legal effect.
[23] Another point carried out by Reddy's report was that admission by the applicant that
he had not received copies of accounting records from his accountant, Reddy
reported that is of the view that the applicant contravened rule 54.6 of the LPC
Rules.
23.1 The failure to keep proper accounting records in relation to the trust account
is a serious offence. The keeping of proper records underpins the legislature 's
endeavors to protect the interests of the public. As succinctly stated by Van
Winsen J in Cape Law Society v Mda 1971 (2) SA 201 (C) at 204H:
Conclusion "It is not sufficient that trust monies should be misappropriated. It is
equally necessary that an attorney's dealings with such monies should
be properly recorded ... failing that, much of the machinery provided by
the Legislature ... for the protection of clients, and, indeed, of the (Legal
Practitioners Fidelity Fund) is rendered nugatory."
[24] Having considered all the grounds pleaded, this court finds no legal basis to interfere
with the impugned decision, the applicant pleaded wrong rule, the applicant is not
permitted to do so. The applicant has failed to make a proper case for review and
setting aside of the respondent's decision.
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Order
[25] I accordingly make the following order: -
1. The application for review is dismissed.
2. No order as to costs.
Appearances Mathabathe AJ
Acting Judge of the High Court of South Africa
Limpopo Division
Polokwane
For the Applicant: Adv M Malowa SC with Adv M.J Mohoto
Instructed by: LETSELA NKONDO ASSOCIATES INC
E-mail: litigation@lestselankondoinc .co.za
For the Respondent: Adv M Rakgogo
Instructed by: AM VILAKAZIN INC ATTORNEYS
E-mail: info@vilakazitauattorneys.com
Dates of Hearing: 17 February 2025
Date of Judgement: 15 May 2025
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This judgment was handed down electronically with the consent of and by
circulation to the above-mentioned legal representatives by email. The date and time
for hand-down is deemed to be 1 0h00 on 15 May 2025.