THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 320/2024 and 368/2024

In the matter between:
JOHN WALKER FIRST APPELLANT
JOHN WALKER ATTORNEYS INC SECOND APPELLANT
DEON MARIUS BOTHA N O THIRD APPELLANT
BAREND PIETERSEN N O FOURTH APPELLANT
ALLAN DAVID PELLOW N O FIFTH APPELLANT
JOHAN FRANCOIS ENGELBRECHT N O SIXTH APPELLANT
PAMODZI GOLD EAST RAND (PTY) LTD SEVENTH APPELLANT
and
SCHABORT POTGIETER ATTORNEYS INC FIRST RESPONDENT
GERT LOURENS STEYN DE WET N O SECOND RESPONDENT
KAREN KEEVY N O THIRD RESPONDENT
SIMONE LIESEL MAGARDIE N O FOURTH RESPONDENT
IRENE SUSAN PONNEN N O FIFTH RESPONDENT
AURORA EMPOWERMENT SYSTEMS (PTY) LTD SIXTH RESPONDENT
THE MASTER OF THE HIGH COURT, PRETORIA SEVENTH RESPONDENT

Neutral citation: Walker and Another v Schabort Potgieter Attorneys Inc and
Others (320/2024 and 368/ 2024) [2025] ZASCA 154 (17 October
2025)
Coram: MBATHA ADP and MATOJANE and UNTERHALTER JJA and HENNEY
and KUBUSHI AJJA
Heard: 18 August 2025

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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for the handing down of the judgment are
deemed to be 11:00 on 17 October 2025.
Summary: Claim of a company in liquidation for assets recovered by an attorney –
attorney’s duty to account and debatement of accounts -whether s 32(1) (b) of the
Insolvency Act 24 of 1936 applies – whether the word ‘fails’ in s 32(1) (b) includes
inability to proceed with legal proceedings on behalf of the company in liquidation -
whether a creditor who finances litigation on behalf of the company in liquidation is
entitled to the proceeds – duty to account and debatement of accounts by an attorney
– attorney’s statutory, contractual and fiduciary duties.

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ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Skosana AJ sitting as
court of first instance):
1. The appeal is dismissed with costs, including the costs of two counsel where so
employed.
2. All the appellants are ordered to pay the costs of this appeal jointly and severally,
the one paying the other to be absolved.


JUDGMENT

Mbatha ADP (Matojane JA and Henney and Kubushi AJJA concurring):

[1] The issues before this Court arise from an appeal brought by the first appellant,
Mr John Walker; the second appellant, John Walker Attorneys Inc; the third appellants,
Deon Marius Botha N O, Baren P ietersen N O, Allan David Pellow N O, and Johan
Francois Engelbrecht N O, being the joint liquidators of Pamodzi Gold East Rand (Pty)
Ltd (the Pamodzi liquidators); and the fourth appellant, Pamodzi Gold East Rand (Pty)
Ltd (in liquidation) (Pamodzi). The appeal is against the judgment and order of the
Gauteng Division of the High Court, Pretoria, (the high court). The high court granted
various orders in favour of the respondents, Gert Lourens Steyn De Wet N O, Karen
Keevy N O, Simone Liesel Magadie N O, and Irene Susan Ponnen N O (the Aurora
liquidators); and Aurora Empowerment Systems (Pty) Ltd (in liquidation) (Aurora). The
names Pamodzi and the Pamodzi liquidators, as well as Aurora and the Aurora
liquidators, will be used interchangeably throughout the judgment.

[2] The high court granted judgment in favour of Aurora and the Aurora liquidators.
The essence of the order was that Mr Walker, the attorney, was required to account

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and to debate the accounts that he had rendered in respect of his professional
services.

[3] Aurora was placed in final liquida tion on 4 October 2011. One of its major
creditors, Pamodzi, lodged a claim of R1.5 billion against Aurora. Consequently, an
inquiry under ss 417 and 418 of the Companies Act 61 of 1973 (the Companies Act)
was conducted concerning Aurora. This inquiry revealed the existence of impeachable
dispositions made under s s 26, 29, 3 0 and 31 of the Insolvency Act 24 of 1936
(the Insolvency Act),1 which unfairly disadvantaged Aurora's creditors. As a result, the
court's intervention was required to recover Aurora’s assets.

[4] It soon became clear that Aurora was not in a financial position to pursue the
recovery of these impeachable dispositions and other claims. As a major creditor of
Aurora, Pamodzi, represented by its liquidators, offered to finance the prosecution of
the claims. This led to the conclusion of a tripartite fee and mandate agreement
between Mr Walker, Aurora and Pamodzi, represented by their respective liquidators.
When the fee and mandate agreement was signed on 7 July 2012 , Mr Walker
practised as a sole proprietor under the name John Walker Attorneys. As of January
2014, he was employed as a professional assistant at Schabort Potgieter Attorneys
(Schabort). At the time of this litigation, he had left Schabort and , as of July 2018
resumed independent practice as the director of John Walker Incorporated (J Walker
Inc). Throughout all these pro fessional transitions, he acted on behalf of Aurora and
retained control of the files in order to recover Aurora’s assets.

[5] The fee and mandate agreement specifically mandated Mr Walker to take all
necessary steps regarding Aurora’s claims. In return, Pamo dzi agreed to cover the
costs of Aurora’s litigation as outlined in the agreement and indemnified Aurora in
respect thereof . Conse quently, the liquidators of Pamodzi co -signed th e fee and
mandate agreement.

mandate agreement.

[6] A material term of the fee and mandate agreement required Mr Walker to
render a final account with supporting vouchers. Clause 4. 2 states that : ‘[a]ll

1 These are proceedings to set aside improper dispositions in terms of the Insolvency Act.

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disbursements reflected in the account will, [in] so far as possible, be accompanied by
supporting documentation…’. In respect of fees, the attorney was required to include
a brief description of the work performed , along with the total hours spent executing
the tasks. In addition , Mr Walker was required to keep Aurora informed about the
progress made in fulfilling the terms of the fee and mandate agreement.

[7] For the seven years following the signing of the agreement, Mr Walker pursued
the li tigation in the name of Aurora. He was largely successful in prosecuting and
collecting debts on Aurora’s behalf, initially recovering approximately R5 million. The
total amount collected by Mr Walker was close to R20 million. However, he refused to
account for these funds to Aurora , claiming that he had no legal obligation to do so,
as Aurora was never his client . Instead, he asserted that he was only required to
account to the liquidators of Pamodzi, who were responsible for paying his fees. This
led to an application brought by Aurora and its liquidators before the high court, which
was contested by Mr Walker and the Pamodzi liquidators.

[8] Before this Court, Mr Walker maintained that he was mandated by the
liquidators of Pamodzi to prosecute the claims; and therefore, he had no duty to
account to Aurora and its liquidators for the legal fees or the settlement of the amounts.
He argued that, under s 32 of the Insolvency Act, Aurora was merely a nominal
applicant. In addition, he submitted that his professional fees, paid by Pamodzi, were
reasonable and that he had provided Aurora with a bill of costs regarding these fees.
As a result, he claimed he owed no duty to account to anyone else . Furthermore, Mr
Walker contended that Aurora and its liquidators had no standing in relation to the fee
and mandate agreement to recover the proceeds of the litigation. Notably, Mr Walker
initially asserted that he owed no fiduciary, statutory, or contractual duty to account to

initially asserted that he owed no fiduciary, statutory, or contractual duty to account to
Aurora – a position he later abandoned during counsel’s oral argument.

[9] In support of his argument, Mr Walker indicated that the mandate had been
given to J Walker Attorneys, which ceased to exist in 2012. He disavowed the
existence of any legal relationship between Aurora, Schabort, and J Walker Inc. He
also stated that the orders granted by the high court were moot and unenforceable ,
since he had already su bmitted his accounts for consideration and inspection to

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Aurora. He denied having any further obligation to discuss or debate the accounts with
Aurora’s liquidators.

[10] In support of Mr Walker’s position, the Pamodzi liquidators argued that, under
s 32 read with s 104 of the Insolvency Act, all funds collected by Mr Walker were to be
paid to Pamodzi until their claim was settled. Additionally, they submitted that Aurora,
by merely signing the agreement, did not become a party to the litigation, as they alone
bore the responsibility for legal fees and the oversight of the entire litigation.

[11] Aurora countered by arguing that Mr Walker had a legal obligation to account
to them, deriving from the fee and mandate agreement, and that he owed a fiduc iary
duty under the Attorneys Act 53 of 1979 (now repealed by s 119 of the Legal Practice
Act 28 of 2014). They further contended that the payments made by the debtors were
claimed and paid for Aurora’s benefit. Therefore, Mr Walker was required to account
to Aurora and not to Pamodzi. Aurora emphasised that it was not merely a nominal
litigant; Mr Walker was required to account to them, settle accounts, and address any
issues arising from the discharge of his professional mandate. Aurora stated that
furnishing and debating the account was necessary because the bill of costs included
overlaps with unrelated payments that had nothing to do with Aurora. Furthermore,
they pointed out that Mr Walker made vague entries with insufficient explanations and
no supporting documentation. Lastly, they submitted that the fee and mandate
agreement was not an agreement under s 32 of the Insolvency Act, as claimed by
Pamodzi and Mr Walker.

[12] This Court is called upon to determine the following key issues: (a) Whether
Aurora has a right to claim from Mr Walker the debatement of his account, based on
the express terms of the fee and mandate agreement, a fiduciary relationship that
derives from t he attorney client relationship , and one arising from the applicable

derives from t he attorney client relationship , and one arising from the applicable
statutory framework; (b) The admissibility of Mr Walker's evidence, particularly
concerning the alleged new evidence introduced on appeal; (c) Whether s 32(1)(b) of
the Insolvency Act is applicable in the circumstances of this matter, and if so, whether
the section applies to the relationship between Aurora and Pamodzi in a manner that
ousts Mr Walker's duty to account to Aurora; and (d) Whether the relief granted a quo
has become moot due to Mr Walker's efforts to account.

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[13] It is trite that the objective of an account is to enable the claimant to determine
the indebtedness of the other party. The right to an acco unt can stem from three
sources of obligation : a contractual duty , a fiduciary relationship, or a statutory
obligation.

[14] First, a contractual duty may arise from different kinds of contracts, including a
mandate. This duty may be expressly stated or tacit. Second, the relationship between
an attorney and a client is fundamentally fiduciary in nature. It imposes a duty of good
faith and transparency, necessitating an accounting of all matters known and actions
taken in the execution of the mandate. Third, a statutory duty is regulated by the Legal
Practice Act 28 of 201 4 (the Legal Practice Act) , and its Code of Conduct , which
imposes a statutory obligation on legal practitioners to account truthfully and openly to
their clients. This includes faithfully, accurately, and timeously accounting for all trust
funds and submitting accounts for taxation or asses sment when requested. This
statutory duty exists independently of any contractual obligations and ensures the
client's right to test the correctness and reasonableness of fees and trust transactions.

[15] The extent of accounting required depends on the circumstances of each case.
An inadequate account may be challenged, and the court may make an appropriate
order. An attorney must explain and justify his or her actions, bearing the onus to
demonstrate proper discharge of their duties, especially when discrepancies or a lack
of particularity and supporting vouchers are alleged.

[16] Aurora raised a crucial point in limine regarding Mr Walker's attempt to
introduce new and contradictory evidence in his application for leave to appeal and in
the heads of argument submitted on his behalf . It is settled law that an appeal court
will not lightly admit new evidence unless exceptional circumstances are shown and a

will not lightly admit new evidence unless exceptional circumstances are shown and a
proper application for its admission is made. The party must explain why the evidence
was not presented a quo, show it is prima facie truthful, and demonstrate that it has
material relevance for the determination of the appeal.

[17] Mr Walker's version, particularly concerning the alleged oral agreement
regarding s 32(1)(b) of the Insolvency Act, appeared for the first time in his application
for leave to appeal. This was neither pleaded in the high court nor included in his initial

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answering affidavit. It constitutes an impermissible attempt to cure deficiencies in his
original case.

[18] I had initially intended to address whether Mr Walker had a fiduciary and
contractual relationship with Aurora arising from the fee and ma ndate agreement, as
well as the current Legal Practice Act that regulates the legal profession. However, it
is unnecessary to explore th ese issues further, as Mr Walker's counsel correctly
conceded that Mr Walker owed a fiduciary duty to Aurora under the fee and mandate
agreement and the applicable statutory framework as a practising attorney. It is clear
that, under the fee and mandate agreement , Aurora was Mr Walker’s client , e ven
though his fees were paid by Pamodzi. Consequently, Mr Walker was required to
account to his client, regardless of how he chose to practice. The same conclusion
follows from the statutory relationship that arose between Mr Walker and Aurora under
the Legal Practice Act.

[19] I now turn to the interpretation of the terms of the fee and mandate agreement.
The principles of interpretation were established in Natal Joint Municipal Pension Fund
v Endumeni Municipality (Endumeni),2 which reiterated that interpretation is a unitary
and objective exercise that considers the text, context, and purpose of the document
or instrument in question. 3 It is also a well -established principle of statutory
interpretation that the words used in a document should be understood in their ordinary
grammatical sense, unless this leads to absurdity. In Capitec Bank Holdings Limited
and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others ,4 this Court
cautioned against using the triad of text, context, and purpose in a mechanical
manner.5 Therefore, I will examine the text in the agreement in light of all relevant and
admissible context, including the circumstances surrounding its creation.6


2 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262

(SCA); 2012 (4) SA 593 (SCA).
3 Ibid paras 18-19.
4 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
[2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA).
5 Ibid para 25.
6 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176;
[2014] 1 All SA 517 (SCA); 2014 (2) SA 494 (SCA) para 12.

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[20] Upon applying the aforementioned principles, the language used in the
agreement is clear and unequivocal. It explicitly outlines the purpose of the agreement.
The purpose of the fee and mandate agreement was to recover funds paid to various
creditors of Aurora that contravened the provisions of s s 26 to 31 of the Insolvency
Act. This is evident from the wording of the fee and mandate agreement, which
specifically entrusts Mr Walker with the collection of debts on behalf of the Aurora
estate.

[21] The agreement was signed by the liquidators of Aurora, Mr Walker, and the
liquidators of Pamodzi. The major creditor, Pamodzi, agreed to pay Mr Walker, the
attorney, for his services, while simultaneously indemnifying Aurora against these
costs. The fee and mandate agreement was concluded following the completion of the
ss 417 and 418 enquiry in terms of the Companies Act, which uncovered the existence
of the impeachable transactions. In this context, I am satisfied that the agreement was
signed in accordance with s 32(1)(b), even though it does not explicitly state this. This
position is further supported by the wording of s 32(1)(a), which provides that:
‘[p]roceedings to recover the value of property or a right in terms of section 25(4), to
set as ide any disposition of property under section[s] 26, 29, 30, or 31, or for the
recovery of compensation or a penalty under section 31, may be taken by a trustee ’.
The heading of s 32 is also relevant, as it refers to ‘proceedings to set aside improper
disposition’.

[22] Section 32(1)(b) further provides that: ‘if the trustee fail s to take any such
proceedings they may be taken by any creditor in the name of the trustee upon
indemnifying the trustee against all costs thereof’. (Emphasis added). This provision
must be read in conjunction with s 32(1)(a) as they both outline the purpose of the
provision and the means for pursuing the recovery of unlawful dispositions should the

provision and the means for pursuing the recovery of unlawful dispositions should the
trustee fail to act. The provisions should be read conjunctively with s 32(3), which
states: ‘[w]hen the Court sets aside any disposition of property under any of the said
sections, it shall declare the trustee entitled to recover any property alienated under
the said disposition…’

[23] It is common cause that Aurora was not in a position to finance the recovery of
the assets. There was no failure on the part of Aurora’s liquidators to act as provided

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in s 32(1)(b). In that regard, there was no obstruction by Aurora’s liquidators. In fact,
Aurora simply lacked the financial resources to do so. I find that the interpretation of
the word ‘fails’ in this provision may encompass an unwillingness, but also an inability
to prosecute the litigation. This finding aligns with the purpose of s 32, particularly as
the liquidators of Aurora were willing to proceed with the recovery of the claims but
faced financial challenges.

[24] Section 32(1)(b) provides that the proceedings may be taken by any creditor in
the name of the trustee , upon indemnifying the trustee against all costs thereof.
Clause 2.2 of the fee and mandate agreement state s that: ‘[t]he Pamodzi liquidators
shall be responsible to pay in full all disbursements incurred by the attorney in respect
of the fees of service provid ers such as advocates, experts and assessors who the
attorney will be entitled to appoint in his sole discretion when he deems it necessary,
as principal viz a viz such service provider ’. By signing the agreement, Pamodzi
accepted responsibility for the payment of all these costs, thus indemnifying Aurora’s
liquidators as required by s 32(1)(b).

[25] Having reached this conclusion, I must determine who is entitled to receive the
funds collected under the s 32(1)(b) fee and mandate agreement by Mr Walker. The
funds collected can only be for the benefit of the company in liquidation, in this case,
Aurora. T he litigation is conducted in the name of the insolvent estate and its
liquidators. The creditor merely supports the litigation financially in the prosecution of
the claims in terms of s 32(1)(b), and simply indemnifies the liquidators of the company
in liquidation for the costs incurred in the li tigation. Section 32(1)(b) does not confer
legal standing on the creditor to recover the claims.

[26] The agreement clearly outlines Mr Walker’s responsibilities in executing his

[26] The agreement clearly outlines Mr Walker’s responsibilities in executing his
mandate. Clause 7.2 authorises Mr Walker in the following manner: ‘[w]e hereby
authorise the attorney to receive any monies which may be payable to me, and to
recover therefrom any fees and disbursements owing by me/us before any balance is
paid out to me’. (Emphasis added). Both the Pamodzi and Aurora liquidators claim to
be the intended recipients of these funds. However, in light of the purpose of s 32(1)(b),
this cannot be the case in respect of Pamodzi , because the monies collected are
payable to Aurora. It is also unfortunate that Mr Walker selectively interpreted the

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terms ‘me’, ‘you’, and ‘us’ in the agreement to refer only to Pamodzi. The language of
the agreement must be u nderstood on the basis that Aurora is the claimant of the
assets, and the proceeds are payable to Aurora, so that the liquidators may then
proceed with the orderly winding-up of the company.

[27] Having found that s 32(1)(b) does not entitle Mr Walker to pay Pamodzi – since
the funds were recovered on behalf of Aurora – it follows that the funds collected are
for the benefit of Aurora. The funds recovered by Mr Walker were to be paid to Aurora
and must now be transferred back to Aurora.

[28] This brings me to the consideration of Mr Walker’s duty to account to Aurora .
Aurora contended that the litigation was effectively commenced and began yielding
results around 2019. However, the quality and frequency of Mr Walker’s reporting to
Aurora declined after substantial payments were deposited into his trust account. This
raised suspicions that Mr Walker might have misappropriated the proceeds from the
litigation, collected on behalf o f Aurora , to cover costs associated with Pamodzi’s
unrelated litigation. On 4 September 2019, Aurora formally demanded that Mr Walker
pay the recovered funds. In response, he declined to account to Aurora and stated
that the amount of R5,837,644 paid to Aurora was a gratuitous payment made at
Pamodzi's instruction. By then, Mr Walker had recovered approximately R19,995,756.

[29] Pamodzi’s argument that, based on the fee and mandate agreement, along with
an alleged verbal agree ment, it was a material term that Pamodzi was entitled to
receive the funds collected by Mr Walker, is not correct. Additionally, their reliance on
s 32 read in conjunction with s 104, which they claimed entitled them to the funds
collected by Mr Walker, is equally misplaced. The only benefit that accrues to Pamodzi
is stated in s 104(3), which reads as follows:
‘If any creditor has under subsection (1) of section 32 taken proceedings to recover the value

of property or a right under section 25(4), to set aside any disposition of or dealing with
property under section 26, 29, 30 or 31 or for the recovery of damages or a penalty under
section 31, no creditor who was no t a party to the proceedings shall derive any benefit from
any moneys or from the proceeds of any property recovered as a result of such proceedings
before the claim and costs of every creditor who was a party to such proceedings have been
paid in full.’

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[30] In the case of Reynolds and Others N N O v Standard Bank of South Africa Ltd
(Reynolds),7 the court emphasised the essential nature of s 32(1)(b). It held that when
litigation is initiated in the name of the liquidators under this s ection, it does not alter
the fact that the plaintiffs are the ones who will receive payment if the litigation
succeeds, and who will be responsible for the costs if it fails. Th e court also clarified
that it is incorrect to refer to the plaintiffs as merely ‘nominal plaintiffs ’. They are
considered plaintiffs because they are the only parties entitled to pursue the litigation
in question.

[31] The nature of the tripartite fee and mandate agreement, according to s 32(1)(b)
read with s 104(3), was clarified in the case of Myburgh v Wal ters N O.8 The court
stated that the ‘creditor’ is not technically a party to the litigation if the judgment is
granted in favour of the plaintiff ; only the trustee has the authority to execute it. This
applies even though the ‘creditor’ is the driving force behind the litigation. Essentially,
the creditor who litigates on behalf of the trustee is practically considered the litigant.
However, any money recovered from the litigation will not be paid directly to the
creditor. The con cerned creditor enjoys protection in terms of s 104(3) of the
Insolvency Act. In conclusion, s 32(1) (b) read in conjunction with s 104(3) , does not
allow the creditor to take control of the proceeds of the litigation and pay themselves.
Such conduct would defeat the purpose of s 32(1)(b).

[32] The interpretation of the provisions in s 32(1) (b), read in conjunction with
s 104(3) and the mandate and fee agreement, clearly establishes that Mr Walker had
a duty to account to the Aurora liquidators. As previously stated, the duty to render an
account can arise from a fiduciary relationship between parties, a statutory obligation,
or a contractual duty.9 The claimant must assert and prove the basis for the right to

or a contractual duty.9 The claimant must assert and prove the basis for the right to
receive the account, demonstrate the defendant's failure to provide an account, and ,
if an incomplete account was given, show that it was not a proper account. In this case,
the relationship between Aurora, the liquidators, and Mr Walker arose from both a
fiduciary and a contractual relationship.


7 Reynolds and Others N N O v Standard Bank of South Africa Ltd 2011 (3) SA 660 (W) paras 9-10.
8 Myburgh v Walters N O 2001 (2) SA 127 (C) at 130E-G.
9 Doyle v Board of Executors (Board of Executors)1999 (1) All SA 309 (C); 1999 (2) SA 805 (C) at 812I-
813A.

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[33] The high court ordered Mr Walker to furnish detailed statements of account and
to debate those accounts with Aurora’s liquidators. He was further ordered to pay over
any outstanding sums of money due to Aurora.

[34] Mr Walker has raised a number of defences before this Court, including that he
had no mandate to account to Aurora ; that the high court wrongly extended the
lifespan of J Walker Attorneys, which ended in 2013; and that the accounting to Aurora
had already been completed. Insofar as the debatement of the account is concerned,
Mr Walker raised a defence of impossibility. He argued that he could not debate
accounts relating to another firm of attorneys, Schabort, as he was not responsible for
the books of account for that firm. He further asserted that Aurora’s claim may have
prescribed, and that, as a result, it was not competent for him to comply with the high
court order.

[35] Mr Walker finally conceded that he had both a contractual duty and a fiduciary
duty to account to Aurora , but only when the matter served before this Court. This
concession has satisfied the first two requirements set out in Doyle v Fleet Motors PE
(Pty) Ltd (Fleet Motors) where this Court held that:
‘ the plaintiff should aver –
(a) his right to receive an account , and the basis of such right, whether by contract or by
fiduciary relationship or otherwise;
(b) any contractual terms or circumstances having a bearing on the account sought;
(c) the defendant's failure to render an account…’ 10
In relation to the contentious issue of whether Mr Walker failed to render an account,
the court in Victor Products (SA) (Pty) Ltd v Lateulere Manufacturing (Pty) Ltd,
relying on Doyle, stated as follows:
‘The right at common law to claim a statement of account is, of course, recognised in our law,
provided the allegations in support thereof make it clear that the said claim is founded upon a
fiduciary relationship between the parties or upon some statute or contract which has imposed

fiduciary relationship between the parties or upon some statute or contract which has imposed
upon the party sued the duty to give an account. Allegations which do no more than to indicate
a debtor and creditor relationship would not justify a claim for a statement of account.’11


10 Doyle v Fleet Motors PE (Pty) Ltd (Fleet Motors) [1971] 3 All SA 550 (A), 1971(3) SA 760 (A) at
762F-H.
11 Victor Products (SA) (Pty) Ltd v Lateulere Manufacturing (Pty) Ltd 1975 (1) SA 961 (W) at 963.

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[36] In Scholtz and Another v De Kock NO and Others (Scholtz),12 this Court clarified
when fiduciary duties to account arise. It held that deposits into an attorney’s trust
account do not, on their own, automatically create an accounting obligation to account
to the depositor. The nature and extent of a fiduciary duty can only be determined after
a thorough consideration of the facts. Therefore, there is no automatic duty to account
merely because someone is an attorney who handles trust funds. The court has to
examine the factual matrix and consider the nature of the mandate. In this case, I have
found that Mr Walker’s duty to account is expressly grounded in the written fee and
mandate agreement, as well as in the relationship governed by the Legal Practice Act.

[37] In Scholtz, as in Board of Executors , the court held tha t although the case
involves an inter vivos trust, the question at issue was one that could arise in a ny
circumstance where persons stand in a fiduciary position to others. 13 The court went
on to explain what a duty to account entails:
‘. . .The right to an account was at once two distinct concepts. It is both substantive and
procedural. It is a right as well as a remedy. The duties of good faith, which were owed by an
agent to his principal, were no different in kind to those which fell on a trustee. . .
An agent who accepts a mandate is bound to execute it. If he fails to do so without sufficient
legal excuse, he is liable for the loss which follows. In an action for the damage, the onus is
on the agent to show that he is not liable. The degree of care owed by the agent seems to be
an open question. It is not clear whether his liability extends to slight negligence. Whatever
the answer to that conundrum may be, the duty falls on an agent to demonstrate that he acted
with whatever care a nd skill the occasion demanded. An agent must keep his principal's
property separate from his own and must deliver up to his principal that which is his. If he

property separate from his own and must deliver up to his principal that which is his. If he
mixes the two, that which he, the agent, cannot prove to be his own is presumed to belong to
his principal.
Inextricably bound up with this by no means exhaustive compendium of obligations is the
agent's duty to give an accounting to his principal of all that he knows and has done in the
execution of his mandate and with his principal's property.’14

[38] Board of Executors essentially emphasised that the duty to account is a
substantive legal obligation. The agent must justify his actions and bear the onus of

12 Scholtz and Another v De Kock N O and Others (312/2023) [2024] ZASCA 132 (2 October 2024)
para 15.
13 Board of Executors at 808F.
14 Ibid at 806E-F and 813E-G.

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demonstrating the proper discharge of his office. Mr Walker is therefore legally
obligated to provide a comprehensive and fully supported account of his dealings with
Aurora’s assets. The issue of the adequacy of accounting lies at the heart of the
dispute between Mr Walker and Aurora. As the high court found the accounting to be
inadequate, Aurora should not be denied the right to enquire and ensure that the
accounts are adequate before the debatement , as was the case in Grancy Property
Limited and Another v Seena Marena Investment (Pty) Ltd and Others.15

[39] Aurora complained about the quality of the statements of account , describing
them as being vague, with overlapping fee assertions and the alleged misuse of
Aurora’s funds, amongst other issues. Trust funds managed by an attorney require
transparency, contemporaneous documentation, and itemised accounts. Debatement
can follow only after a proper accounting has been done. My finding is supported by
Board of Executors, which relies on Professor Kerr, who states the law as follows:
“An agent is obliged to ''account for everything in good faith''. It is his duty
''where the business in which he is employed admits of it, or requires it, to keep regular
accounts of all his transac tions on behalf of his principal, not only of his payments and
disbursements, but also of his receipts; and to render such accounts to his principal at all
reasonable times, without any suppression, concealment, or overcharge''.
This involves an agent in keeping the principal's property separate; in keeping his accounts
up-to-date and allowing the inspection of his books; in giving information when necessary;
and, when the transaction is complete, in rendering an account and handing over any balance
in his hands plus anything to which the principal is entitled.”16

[40] Aurora submitted that t he forensic audit found that Mr Walker had
inappropriately used funds collected on behalf of Aurora to settle litigation costs for

inappropriately used funds collected on behalf of Aurora to settle litigation costs for
Pamodzi in unrelated matters. They specifically mentioned R1.5 million, which was
received in three instalments, and remained unaccounted for in Mr Walker’s account.
Additionally, R600 000 was deposited into his trust account on 15 February 2016 and
debited on the same day, with no explanation regarding its intended destination.
Aurora raised concerns that the accounts p rovided were summaries rather than
comprehensive accounting reports. They noted that no vouchers for disbursements

15 Grancy Propert yLimited and Another v Seena Marena Investment (Pty) (Ltd) and Others [2014]
ZASCA 50; [2014] 3 All SA 123 (SCA) para 19.
16 Board of Executors at 814D-E.

16

were attached, and there was no account of the movement of funds from Schabort to
John Walker Inc. It was of great concern to them that Mr Walker did not differentiate
between the matters funded by Pamodzi on behalf of Aurora and the litigation he
conducted for Pamodzi.

[41] In light of the aforementioned, I find that Mr Walker did not adequately account
to Aurora for the following reasons: the account analysis was conducted by a forensic
auditor, rather than being based solely on the claims of the Aurora liquidators ; the
report from the forensic auditor remains unchallenged ; and the funds collected have
not been paid to Aurora. Additionally, the JW9 statement, allegedly reflecting all the
amounts received by Mr Walker in the conduct of the various matter s, is wholly
insufficient. It does not constitute a full and proper accounting, as there are no details
of who paid the amounts or received any of the amounts. It does not even distinguish
payments made by and to Pamodzi. The mere provision of over 400 statements does
not amount to proper accounting. Therefore, Mr Walker cannot argue that the duty to
account is irrelevant. He has failed to provide a sufficient accounting to Aurora. Aurora
is entitled to an appropriate accounting, not a bill of costs, or a bundle of statements.
Aurora is also entitled to the debatement of the account. I cannot find fault with the
orders granted by the high court , as they set out each and every matter in which
accounting and debatement are sought. In the event that proper accounting has been
provided, the parties may proceed with the debatement of the accounts.

[42] For all the above reasons, the following order is made:
1. The appeal is dismissed with costs, including the costs of two counsel where so
employed.
2. All the appellants are ordered to pay the costs of this appeal jointly and severally,
the one paying the other to be absolved.

________________
Y T MBATHA
ACTING DEPUTY PRESIDENT OF APPEAL

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Unterhalter JA:

[43] I have had the pleasure of reading the judgment of Mbatha ADP (the first
judgment), and I concur with its central holdings as to the duty of Mr Walker to account
to the liquidators of Aurora Empowerment System (Pty) Ltd (in liquidation) (Aurora).
Aurora was Mr Walker’s client. The permutations under which he practised over the
years did not alter his duty to account to Aurora as his client. That duty, as the first
judgment finds, is sourced in the mandate Mr Walker accepted; in the fiduciary duties
he owed as an attorney to his client; and in the statutory obligations by which he was
bound. Nor was that duty attenuated or absolved by reason of the fact that the
liquidators of Aurora’s principal creditor, Pamodzi Gold East Rand (Pty) Ltd (Pamodzi),
agreed to fund the litigation by which Aurora sought to secure the payment of its
claims. Whether or not s 32(1)(b) of the Insolvency Act 24 of 1936 was of application
to the arrangement concluded between Mr Walker, Aurora and Pamodzi, and
whatever duties Mr Walker may have had to account to Pamodzi by reason of this
arrangement, this did not discharge his duty to account to Aurora. The defence offered
by Mr Walker that he had accounted to Pamodzi to their satisfaction has been rightly
rejected in the first judgment. So too, Mr Walker’s contention that his employment as
a professional assistant in the firm of Schabort Attorneys absolved him of his duty to
account to his client, Aurora, during the period of his employment, has no merit, as the
first judgment holds.

[44] Mr Walker also offered the following defence. He contended that, whatever the
incidence of his duty to account to Aurora, he has accounted to Aurora in full. He relied
upon an attachment to his answering affidavit, JW9, that Mr Walker contended was a
‘statement of all amounts received by me in the conduct of the variou s matters’. In
addition, a decision was taken to proceed with the taxation of the bills in respect of all

addition, a decision was taken to proceed with the taxation of the bills in respect of all
the matters in which Mr Walker was instructed. The bills were then drawn by a cost
consultant for the purposes of taxation. These accounts, Mr Walker argued, constitute
‘comprehensive accounts’ and there is no more he can provide. His defence was thus
that he had discharged his duty to account to Aurora.

[45] In its replying affidavit, Aurora sets out the shortcomings of Mr Walker’s
accounting. So, for example, the amounts received by Mr Walker , as set out in JW9,

18

do not disclose from whom the monies were received , and to whom they were
disbursed. Of the total proceeds received by Mr Walker in trust of R 19 995 756.00,
R5 837 644.00 was paid to Aurora by Mr Walker. It is difficult to ascertain how the
difference, being R 15 155 801.00, is to be accounted for. These , and other
shortcomings, are set out in a report that has been compiled by Ms Warricker, a
forensic investigator of long exp erience, attached to the replying affidavit as RA 11,
and confirmed by her on oath. Ms Warricker’s report considered what Mr Walker relied
upon as constituting his accounting, and explained why that effort falls short of what
is required. This report builds upon the issues raised by Ms Warricker in her first report,
attached to the founding affidavit, as GDW31, and summarised in paragraph 68 of the
founding affidavit. I shall refer to these reports as the Warricker reports.

[46] I find, with the first judgment, that the accounting provided by Mr Walker does
not discharge his duty to account. His defence, that he has provided a comprehensive
accounting, must fail for the reasons set out in the Warricker reports, which have not
been rebutted by him. The first judgment recognises that Mr Walker has provided an
accounting. It references certain respects in which the accounting is inadequate. But
it does not indicate what Mr Walker must do, fully to discharge his obligation. Rather,
it concludes that the accounting is inadequate and then dismisses the appeal, leaving
in place the order made by the high court. That order is framed in wide terms . It is
formulated without regard to the accounting Mr Walker has made , and it does not
stipulate what remains to b e done to ensure that Mr Walker’s obligation is properly
performed. The high court order is thus overbroad. It is composed as if Mr Walker had
made no accounting at all. And because of its overbreadth, it is likely to give rise to

made no accounting at all. And because of its overbreadth, it is likely to give rise to
further disputes as to whether Mr Walker has complied with the order. The first
judgment does not engage these difficulties when it s hould. A court order must be
obeyed. An order that does not sufficiently specify what must be done, given what has
been done, is not an order that should be upheld. Yet the first judgment simply
dismisses the appeal and upholds the high court’s order. For this reason, I do not
concur with the first judgment as to the order it has made because it does not vacate
the high court’s order and replace it with an order that specifies what remains to be
done by Mr Walker to provide an adequate accounting to Aurora.

[47] The high court’s order reads as follows:

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‘1. Directing the First and Second Respondents to furnish the applicants within 10 days
of this order with:
1.1. a statement of account in respect of all amounts received, collected and disbursed by
the First and Respondents in the following matters:
1.1.1. CF De Wet N.O & 3 Others v Shamilla Essay & 2 Others – Case Number 44157/2012;
1.1.2. Aurora Empowerment Sys tems (Pty) Ltd (in liquidation) v Khulubuse Clive Zuma –
Case Number 38065/2016;
1.1.3. Aurora Empowerment Systems (Pty) Ltd (in liquidation) v Zobeida Bhana & 2 Others
– Case Number 44155/2012;
1.1.4. Aurora Systems (Pty) Ltd (in liquidation) v Feroza Bhana & 2 Others – Case Number
44156/2012;
1.1.5. Aurora Empowerment Systems (Pty) Ltd (in liquidation) v Mohamed Firoze Limbada &
3 Others – Case Number 50016/2012;
1.1.6. Aurora Empowerment Systems (Pty) Ltd (in liquidation) v Yaseen Theba & 2 Others –
Case Number 44154/2012;
1.2. a statement of account in respect of all amounts received, collected and disbursed by
the First and Second Respondents in respect of the matters referred to in annexures GDW
14.1 to GDW 14.9 to the founding affidavit filed in support of this application;
1.3. a statement of account in respect of all amounts collected and disbursed by the First
and Second Respondents in respect of any other matters in which any of the First and Second
Respondents acted for any of the applic ants in relation to the trade, dealings, affairs and
property of Aurora Empowerment Systems (Pty) Ltd (in liquidation).
1.4. a fully itemised bill of costs, or duly taxed bill of costs, for all fees and disbursements
incurred by the First and Second Respondents in respect of the aforementioned matters.
2. The First and Second Respondents are directed to debate the aforesaid accounts and
bills of costs with the applicants within one month from the date of receipt of the applicants'
notice that they have received such accounts and bills of costs and are ready to debate with
the First and Second Respondents.

the First and Second Respondents.
3. The First and Second Respondents are ordered to pay the applicants any amount/s
found to be due upon debatement thereof.
4. If the parties do not reach an agreement in debating the account/s:
4.1. directing them to formulate a list of all disputed items within 10 days of a request by
one party to the other;
4.2. granting leave to approach the Court on the same papers, duly supplemented as
necessary, for a debatement of the disputed items; and
4.3. ordering the First and Second Respondents to make payment of any amount found to
be due to the applicants upon debatement thereof.

20

5. All the Respondents opposing this application are to pay the costs on the attorney and
client scale, jointly and severally, the one paying the other to be absolved.’

[48] The high court order is formulated as if Mr Walker had not made any accounting
to Aurora – hence it is overbroad. This lack of specificity is easily cured. The Warricker
reports read with paragraph 68 of the founding affidavit set out what is still required of
Mr Walker to secure a full accounting. Mr Walker should thus be ordered to account
so as to make good the deficiencies identified in the Warricker reports. To the extent
that he cannot, he should indicate why he is unable to do so, and his accounting may
then be subject to debatement. On this basis, the appeal would succeed , but only
insofar as the order of the high court was overbroad. However, the appellants would,
for the most part , have failed in their appeal, and accordingly must be held liable for
the costs of the appeal.

[49] I would accordingly have made the following order:
(i) The appeal succeeds in part.
(ii) The appellants are ordered to pay the costs of the appeal, including the costs
of two counsel, where so employed, the one paying the other to be absolved.
(iii) The high court order is set aside and replaced with the following:
‘1. Directing the first and second respondents to furnish the applicants , within 30
days of this order, with:
a further statement of account that is responsive to the issues raised in the Warricker
reports (being annex GDW 31 to the founding affidavit and RA 11 to the replying
affidavit), and to the extent that they cannot do so, to specify their reasons.
2. The First and Second Respondents are directed to debate the accounts and
bills of costs, provided by them, with the applicants, within one month from the date of
receipt of the applicants ’ notice that they have received such accounts and bills of
costs and are ready to debate them with the First and Second Respondents.

costs and are ready to debate them with the First and Second Respondents.
3. The First and Secon d Respondents are ordered to pay the applicants any
amount/s found to be due upon debatement.
4. If the parties do not reach an agreement in debating the accounts:
4.1. directing them to formulate a list of all disputed items within 10 days of a request
by one party to the other;

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4.2. granting leave to approach the Court on the same papers, duly supplemented
as necessary, for a debatement of the disputed items; and
4.3. to seek an order requiring the First and Second Respondents to make payment
of any amount found to be due to the applicants upon debatement thereof.
5. All the Respondents opposing this application are to pay the costs on the
attorney and client scale, jointly and severally, the one paying the other to be
absolved.’


________________________
DN UNTERHALTER
JUDGE OF APPEAL

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Appearances

For first and second appellants: J Hershensohn SC with PJ Greyling
Instructed by: John Walker Attorneys, Pretoria
Webbers Attorneys, Bloemfontein.

For the intervening appellants: SJ Van Rensburg SC
Instructed by: Crouse Inc, Pretoria
Webbers Attorneys, Bloemfontein.

For second to fifth respondents: M Tshele with B Viljoen
Instructed by: Kwa Attorneys, Johannesburg
Hill Mchardy and Herbst Inc., Bloemfontein