IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
LUCINDA LOURENS
and
SOUTH AFRICAN INSTITUTE OF CHARTERED
ACCOUNTANTS
THE BOSS GROUP (PTY) LTD
Not reportable
Case no: 2923/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Lourens v South African Institute of Chartered Accountants
(2923/2024) [2026] ZAFSHC 104 (19 March 2026)
Coram:
Heard:
VANZYL Jet DAFFUE J
12 May 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by e-mail and released to SAFLII. The date and time for hand
down is deemed to be 1 0h30 on 19 March 2026.
Summary: Administrative Law - review - procedural fairness - right to be informed
of the charge with sufficient particularity - professional body (SAICA) finding member
guilty on grounds distinct from the original notification - breach of ss 3(2)(b)(i) and
6(2)(c) of the Promotion of Access to Justice Act 3 of 2000.
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ORDER
1 The decision of the Judicial Conduct Committee of the first respondent, dated
14 November, in terms whereof the applicant was found guilty of contravention of the
first respondent's By-Laws and Code of Professional Conduct and sanctioned
accordingly, is reviewed and set aside, and substituted with the following order:
'1.1 The applicant did not make herself guilty of contravening any of the By-
laws or Code of Professional Conduct of the first respondent.'
2 The first respondent is ordered to pay the costs of the application;
counsel's fees to be paid on Scale B.
JUDGMENT
Van Zyl J
[1] This is a Rule 53 review application in which the applicant is seeking the following
relief in terms of the amended notice of motion:
'1. That the following decisions of the first respondent's Professional Conduct Committee
be reviewed and set aside:
1.1 The decision to find the applicant guilty of a punishable conduct for failing to administer
the Second Respondent's payroll system;
1.2 The decision to find the applicant guilty of paragraphs 5.1.6 of the 2021 and 2022
SAICA By-Laws (as amended) and Section 110.1 A 1 read with subsection 113:
Professional Competence and Due Care of the SAICA 2021 and 2022 Code of Professional
Conduct;
1.3 The decision to impose the following sanctions: (a) a reprimand; (b) a fine of R25 000;
and (c) publication of the Applicant's disciplinary matter on the SAICA website, member
communications and/or ASA magazine.
2. That such respondent opposing the application be ordered to pay the costs.'
Background
[2] The applicant is a qualified accountant and became an Associate General
Accountant member of the first respondent, the South African Institute of Chartered
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Accountants ('SAICA') during 2016. During 2019 she qualified as a Gene·ral Tax
Practitioner (SA) and became a member of the South African Institute of Taxation.
• [3] At all times relevant to this application the applicant has been practicing as an
accountant and general tax practitioner under Boss@Tax (Pty) Ltd in Bloemfontein.
[4] On or about 12 April 2021, the second respondent, represented by its chief
executive officer, Mr JT van Jaarsveld ('Mr Van Jaarsveld'), appointed the applicant
to provide the second respon.dent with accounting and tax consulting services.
[5] On 10 November 2022 Mr Van Jaarsveld notified the applicant via email of the
termination of her mandate effective 30 November 2022. The applicant accepted this
termination of her mandate and informed Mr Van Jaarsveld accordingly in an email
of even date.
[6] Due to subsequent events which occurred between Mr Van Jaarsveld and his
wife, on the one hand, and the applicant, on the other hand (the detail of which I do
not deem necessary to deal with in this judgment), the applicant felt that the trust
relationship between herself as accountant and the second respondent (as well as
Mr and Ms Van Jaarsveld) had broken down irretrievably. In the circumstances she
considered it impossible to deliver any further accounting and tax services to the
second respondent (and to Mr and Ms Van Jaarsveld) and advised them accordingly
in an email dated 15 November 2022.
[7] Since I will henceforth be referring to affidavits filed in the review application, as
well as affidavits filed in respect of the complaint, I will differentiate between the
respective affidavits by indicating in brackets whether it is with reference to the review
application or with reference to the complaint.
[8] On 11 May 2023 SAICA notified the applicant that the second respondent had
filed a complaint against her. A copy of SAICA's written notification is annexed to the
applicant's founding affidavit (review) as annexure 'FA5'. Attached to the said
applicant's founding affidavit (review) as annexure 'FA5'. Attached to the said
notification is the written complaint in the form of an affidavit deposed to by Mr Van
Jaarsveld. The complaint is attached to the applicant's founding affidavit (review) as
annexure 'FA6'. In the said complaint it was alleged that the applicant had committed
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'punishable conduct' under SAICA's By-Laws in several respects. These involved
what has been termed the 'payroll issue", which is the subject of this review. In
SAICA's written notification the applicant was called upon to respond to the complaint
with a detailed written explanation within 21 calendar days. The applicant duly filed
an answering affidavit (complaint) in response to the written complaint in which she
contested the complaint. This answering affidavit (complaint) is attached to the
founding affidavit (review) as annexure 'FAT.
[9] Mr Van Jaarsveld deposed to a replying affidavit (complaint), which is attached
to the founding affidavit (review) as annexure 'FAS'. The applicant filed a rejoinder
affidavit (complaint) attached to the founding affidavit (review) as annexure 'FA9'.
• [1 O] On 10 November 2023 the applicant was informed of the Secretariat's
recommendations as set out in a Case Summary provided to her. The Case Summary
is attached to the founding affidavit (review) as annexure 'FA10'.
[11] On 13 November 2023 the applicant was notified of a disciplinary hearing to be
conducted on 14 November 2023 under the auspices of SAICA's Professional
Conduct Committee ('the PCC').
[12] On 29 November 2023 the applicant was informed of the outcome of the PCC
hearing. The PCC found the applicant guilty of punishable conduct for failing to
administer the second respondent's payroll system. The outcome ('the impugned
decisions') is recorded as follows in the outcome letter, annexure 'FA 12' to the
founding affidavit (review):
'4.1 You are found guilty of contravening Paragraphs 5.1.6 of the 2021 and 2022 SAICA
By-laws (as amended), and section 110.1 A 1 read with subsection 113: Professional
Competence and Due Care of the SAICA 2021 and 2022 Code of Professional Conduct, and
is sanctioned as follows:
4.1.1 A reprimand;
4.1.2 A fine of R25 000.00 (twenty-five-thousand rand) wholly suspended for a period of 3
4.1.2 A fine of R25 000.00 (twenty-five-thousand rand) wholly suspended for a period of 3
(three) years on condition that you do not commit and/or be found guilty of the same or similar
conduct from the date hereof;
4.1.3 The matter will be published on the SAICA website, member communications and/or
ASA magazine together with your name and a brief description of the offence and penalty
imposed; and
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4.1.4 Further a Fit and Proper Enquiry is not necessary herein.'
The basis of the application
[13] The applicant brought the application in terms of the Promotion of Administrative
Justice Act, 3 of 2000 ('PAJA'). In the alternative, should it be found that the impugned
decisions and the legal consequences thereof do not constitute administrative action
as defined by PAJA, it was contended in the founding affidavit (review) that the
impugned decisions are subject to a legality review on the grounds that they were
made in the exercise of a public power.
[14] However, from the arguments advanced on behalf of the respective parties, it
became evident that they are ad idem that PAJA is indeed applicable, in my view,
correctly so. In this regard the following is stated in Kwinana v Chairperson of
Disciplinary Enquiry instituted by the South African Institute of Chartered Accountants
and Another (2093/091726) [2025] ZAGPJHC 735 (12 March 2025) para 66:
'[66] Based on the reasoning above, I agree with SAICA that when the disciplinary tribunal
made its decision, it did so as a private entity exercising a public power, namely regulating
the accounting profession. It does not matter that other institutions have similar powers; what
matters is that the power it exercises complies with the second definition of "administrative
action", as set out above.'
[15] In the founding affidavit (review) of the applicant she contends that the
impugned decisions are flawed to the extent that they fall to be set aside under PAJA
on one or more of the following grounds:
'72.1 The PCC, in coming to the conclusion that it did, ignored the established test to resolve
two conflicting versions. It is accordingly submitted that the impugned decisions were
materially influenced by an error of law (section 6(2)(d) of PAJA); and/or
72.2 The PCC also took into account irrelevant considerations or failed to consider relevant
I
considerations (section 6(2)(e)(iii) of PAJA); and/or
I
considerations (section 6(2)(e)(iii) of PAJA); and/or
72.3 The impugned decisions are not rationally connected to the information before the PCC
alternatively the reasons given for it (section 6(2)(f)(ii)(cc) and (dd) of PAJA).'
[16] In her supplementary founding affidavit which was filed in the review after the
record of SAICA's decision was filed, the applicant persisted with her
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abovementioned grounds of review and she also expanded and amplified the grounds
upon which she contends that the impugned decisions are flawed.
[17] SAICA is opposing the application. The second respondent is not opposing the
application .
The evidence
The complaint
[18] In paragraph 7 of the complaint Mr Van Jaarsveld alleged that the applicant
handled the management and control of the second respondent's payroll system in
an unprofessional and inadequate way.
[19] In paragraph 13.3 of the complaint Mr Van Jaarsveld alleged that the applicant
was responsible for the management and control of the second respondent's payroll
system, which is reflective of the number of staff employed by the second respondent,
as well as the number of wages and/or salaries paid to the said staff.
[20] In paragraph 13.4 of the complaint Mr Van Jaarsveld alleged that the applicant
further controlled the Business Solutions payroll system at First National Bank (FNB).
In this regard Mr Van Jaarsveld claimed that the applicant only attended to loading 8
of the second respondent's employees on the payroll system, whilst the second
respondent employed 28 employees who were supposed to have been added to the
payroll system. As a result of this, the second respondent experienced extreme
difficulties to ensure that employees get a monthly payslip and the applicant was the
only person able to furnish them with a payslip. Mr Van Jaarsveld attached
confirmatory affidavits of two employees of the second respondent who confirmed the
alleged difficulties they experienced to get a monthly payslip.
Answering affidavit to the complaint
[21] In her answering affidavit filed in response to the complaint, at paragraph 6.8
thereof, the applicant responded in detail to paragraphs 13.3 and 13.4 of the
complaint. I will, however, quote her response later in the judgment.
[22] After the applicant's termination of her services at the second respondent, a
[22] After the applicant's termination of her services at the second respondent, a
dispute arose between the applicant and the second respondent regarding the
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release of documentation and records in possession of the applicant against full
payment of her outstanding account for services rendered to the second respondent.
This led to correspondence which was exchanged between the attorneys of the
applicant and those of the second respondent. The correspondence was exchanged
about four months before the second respondent laid the complaint against the
applicant. One such letter is annexure 'B' to annexure 'LL29' attached to the
answering affidavit to the complaint, which is a letter from the applicant's attorney
addressed to the second respondent's attorney, dated 23 November 2022. This
letter (annexure "B") refers to a letter of the applicant, dated 23 November 2022,
attached thereto. In this last-mentioned letter the applicant stated the following:
'2. The monthly payroll was compiled by the client on a "Google Sheets" spreadsheet
where it automatically calculated the deductions and reflected the nett pay. It also reflects the
details of each employee. This spreadsheet is in the possession of the client, and we only
had access thereto in order to process the payslips on a monthly basis.
3. We will send you the payslips that was processed for the period 01 March 2022 - 31
October 2022 via e-mail.'
[23] Another such letter is annexure 'LL27' to the answering affidavit to the
complaint, which is also a letter from the applicant's attorneys addressed to the
second respondent's attorney, dated 9 December 2022. In this letter the appl icant's
attorneys stated the following regarding the payroll:
'Our client maintains that the salaries of The Boss Group were done and processed on a
monthly basis by your client on an Excel spreadsheet, which is in your client's possession.
Your client only allowed our client access for purposes to process the data to "payslips". Your
client can therefore give its new accountants access to the salary schedule in order to enable
them to generate the payslips in the future.
them to generate the payslips in the future.
Our client has already provided the new accountants with all Payslips relating to the period 1
March 2022 to 31 October 2022.
According to our client, there is no reason why your client cannot calculate or pay the salaries
with the information already in their possession.'
Replying affidavit to the complaint
[24] In its replying affidavit to the complaint, the second respondent responded as
follows to paragraph 6.8.1 of the applicant's answering affidavit to the complaint:
'14. The contents hereof is denied, and I stand by my initial statement. Annexed hereto as
annexure RP11 and RP12 is confirmation that Mrs. Lourens dealt directly with the payroll and
managed same.'
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[25] I will return to the contents of annexures 'RP11' and 'RP12'.
Rejoinder affidavit to the complaint
[26] In the rejoinder affidavit which the applicant filed in response to the replying
affidavit filed in the complaint, she responded as follows to paragraph 14 of the
replying affidavit:
'6. 7 .1 The contents hereof are noted and reference is again made to my answering affidavit
dated 25 May 2023.
6.7.2 The information provided in "RP11" I clearly state in the messages that I captured the
payroll information received by the complainant to a payslip format.
6.7.3 The information provided in "RP12" indicates that I calculate the salaries received.
This was to ensure that the final salary spreadsheet received from the complainant which
listed each employee's basic salary, hours worked, deductions and nett payable to each
employee , matched the information generated to payslips.'
The minutes and transcript of the PCC hearing
[27] SAICA delivered the record of its decision in terms of rule 53(1 )(b) on 17 July
2024. It comprises a total of 1535 pages. The applicant subsequently filed an
amended notice of motion and a supplementary founding affidavit in the review
application. Attached to it are the minutes and transcript of the PCC hearing, marked
annexures 'SA 1' and 'SA2' respectively. SAICA subsequently filed an answering
affidavit in the review application and thereupon the applicant filed a replying affidavit.
[28] A panel consisting of a practicing advocate as chairperson and two accountants,
presided over the hearing. Mr M Mathavha, Project Manager: Legal and Discipline,
an admitted attorney, represented the Secretariat of SAICA and effectively acted as
prosecutor 'the prosecutor'. The hearing was conducted virtually. Other than the
applicant, no other witnesses testified at the hearing. In addition to the four affidavits
which Mr Van Jaarsveld, on behalf of the second respondent, and the applicant
deposed to, and the annexures thereto, the Case Summary prepared by the
deposed to, and the annexures thereto, the Case Summary prepared by the
Secretariat, served before the PCC. The totality of the documents which served
before the PCC were marked 'Bundle B' and referred to as such during the hearing.
[29] The Case Summary included the 'Analysis by the Secretariat' and the
'Recommendation by Secretariat'. Attached to the said document was a document
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titled 'Draft Order A'. From a reading of the minutes and the transcript, it is evident
that the whole of the aforesaid document already served before the PCC even prior
to the applicant's appearance at the virtual hearing. Already during this phase of the
meeting, the Secretariat of SAICA submitted as follows at paragraph 6.2.8.13 of the
minutes, which constitutes paragraph 8.13 of the Case Summary:
'The Secretariat is of the opinion that the information contained in Annexure RP12 is rather
contradictory to the Respondent's version that she only dealt with the generation of payslips
and the complainant dealt with the payment of salaries on his own. The Respondent has
listed payment of salaries as one of the unpaid services she rendered to the complainant.
To this end, the Secretariat is of the opinion that the Respondent has failed to take the PCC
into her confidence that she was not responsible for payroll and the consequences attached
to that responsibility. The complainant has maintained that as a result of the Respondent's
failure to administer payroll efficiently, some of the employees suffered as they could not
receive their payslips. The Secretariat is of the opinion that the Respondent is guilty of failing
to administer payroll system for her then client and has contravened the SAICA Code of
Professional Conduct Section 110.1 A 1 read with subsection 113: Professional Competence
and Due Care.'
[30] The Secretariat subsequently recommended that the applicant should be
sanctioned as set out at paragraph 6.2.9.4 of the minutes, which constitutes
paragraph 9.4 of the Case Summary:
'6.2.9.4.1 A reprimand;
6.2.9.4.2 Fine of R25 000.00 (twenty-five thousand Rand) wholly suspended for a period of
3 (three) years on condition that the Respondent does not commit and/or be found guilty of
the same or similar conduct from the date hereof;
6.2.9.4.3 The matter will be published on the SAICA website, member communications
6.2.9.4.3 The matter will be published on the SAICA website, member communications
and/or ASA magazine together with the name of the Respondent and a brief description of
the offence and penalty imposed;
6.2.9.4.4 A Fit and Proper Enquiry is not necessary herein.'
[31] The eventual outcome of the PCC hearing therefore corresponded with the
recommendations by the Secretariat.
[32] I will deal with the further relevant detail of the minutes and the transcript as and
when applicable later in the judgment.
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The charge
[33] In order to give effect to procedurally fair administration, s 3(2)(b)(i) of PAJA
requires adequate notice of the nature and purpose of proposed administrative action.
Although the meaning of 'adequate' notice is not defined, it implies sufficient
information to enable a person to exercise .his or her rights. At common law the
subject of disciplinary proceedings is entitled 'to have the charge clearly formulated
with sufficient particularity in such a manner as will leave him/her under no
misapprehension as to the specific act or conduct to be investigated'. See C Hoexter
et G Penfold, Administrative Law in South Africa, 3 ed (2023), at 509.
[34] As stated earlier in the judgment, in terms of paragraph 7 of the complaint
against the applicant in relation to the payroll issue, the complaint is that the applicant
handled the management and control of the second respondent's payroll system in
an unprofessional and inadequate way.
[35] As also earlier indicated in the judgment , the averment that the applicant was
responsible for the management and control of the second respondent's payroll
system, is repeated in paragraph 13.3 of the complaint. In addition, it is alleged in
paragraph 13.4 of the complaint that the applicant further controlled the second
respondent's Business Solutions Payroll System at FNB and only attended to loading
8 of the second respondent's employees on the payroll system, whilst 28 employees
were supposed to have been added. Because of this, so Mr Van Jaarsveld averred,
the second respondent 'experienced extreme difficulties to ensure that employees
get a monthly payslip after continuously requesting same' and that the applicant was
the only person able to furnish them with a payslip.
[36) The written notice of the disciplinary complaint which SAICA gave the applicant
described the relevant complaint against her as having 'failed to load all the
employees on the payroll system' .
employees on the payroll system' .
[37] The applicant's case throughout was that the management and control of the
second respondent's payroll were not her responsibility. According to her Mr Van
Jaarsveld himself dealt with the payroll on an Excel spreadsheet which he sent to her
solely for the purpose of generating payslips for the employees.
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[38] In respect of the issue of the eight employees, the applicant explained in the
PCC hearing that IR Services used to be appointed by the second respondent as an
outsourced HR service, who, inter a/ia, compiled payslips for the second respondent.
During the course of 2021 the second respondent decided to end their services and
to do the payroll itself, which would be more cost effective for the second respondent.
The payroll system was then done on SAGE, but that was also too expensive for the
second respondent. The applicant then continued and gave the following explanation
in the JCC hearing, as reflected at p. 303 of the application papers:
' ... And then I said to him, ok, well if you want a free system to do it, you have to, we
can consider doing on the FNB platform. I will introduce it to them, to do payslips on
there for them and then they can have a look at it.
So, just to give you guys an indication of what the FNB platform is that was used, it
was linked to their on line banking profile. So, ifs not a profile where they did not have
access. to or anything like that. But, unfortunately, after I myself processed the
payslips on the platform. I said to them that unfortunately the platform itself does not
have all the requirements they need in terms of a payslip and it was decided that they
would stop with that.
So, that's the reason for only loading eight employees onto the FNB payroll, and then
after that I recalculated the payslips on my own payroll platform, which was only used
to generate the payslips. In calculating that, I recaptured all the payslips that was
done from March up until the date where we decided that we should use a new
system, which was my payroll system, just to generate the payslips. And nothing else
was done on that specific platform that was mine.' (My emphasis)
[39] During the PCC hearing, a line of questioning different to what the applicant was
actually charged with, occurred, as reflected at p.320-322 of the application papers:
actually charged with, occurred, as reflected at p.320-322 of the application papers:
[Dr Shuro] 'Were you getting a summary of payees or you were running the payroll. I just
want to get the crux of this matter.'
[Applicant] 'I was getting a summary compiled by the Complainant, of the payroll.'
[Dr Shuro] 'So you had no responsibility of inputting employees? '
[Applicant] 'No.'
[Dr Shuro] 'So, the eight employees, where do they come from? What was your role with the
eight employees?'
[Applicant] 'So, in order for me to provide a payslip for the Complainant, I had to recapture
his already, the information that he already compiled, onto a system in order for them to get
a payslip. So, I re-compiled the data that he already had compiled, onto a payslip. And the
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eight employees that is referred to in the case summary was when I started, when they ended
their services with IR Services, obviously we had to compile payslips for the employees,
which he employed already asked me to do.
So, I had to capture their details, that was already in his possession, on a system in order to
compile a payslip.'
[Dr Shuro] 'I just want to understand something here. When you talk of professionalism, so if
ever there was a mistake on a payslip you basically ignore it? Because you are saying it was
compiled.'
[Applicant] 'What do you mean a mistake on the payslip?'
[Dr Shuro] 'You are saying you are basically there to capture, that is what you have said'
[Applicant] 'Yes. So, what I did on my side, is when there was a mistake made on the payroll,
that was compiled by the Complainant, if there was a mistake it was his mistake, not mine. I
basically just tied up his Excel spreadsheet to a payslip.'
[Dr Shuro] 'So, and I am just coming back to that, so at the end of the day, providing a service
as you are as the accountant, would you say, or the client sees he is reliant on you to say if
we have done something wrong you will correct us?'
[Applicant] 'Yes.'
[Dr Shuro] 'Was that the expectation on that?'
[Applicant] 'Yes, that is true ja'
[Dr Shuro) 'So, we can go back again to the issue of ... because to me the client put a trust
to your profession.
[Applicant] 'Yes'
[Dr Shuro] 'To say I have engaged an accountant, who is a member of SAICA, therefore
whatever I do there is a difference between a matric student who compiles the information
on a payslip and an accountant who puts information on a payslip. Can I say the two are
different?'
[Complainant] 'Yes'
[Dr Shuro] 'And what is expected of you is different from what you are explaining. Because
of your profession and qualifications, more is expected by the client.'
[Applicant] 'With respect, that is only, he only requested me to compile payslips, which I did.
And recalculated from his Excel spreadsheet that had formulas inserted by himself. I did
check to make sure that the UIF and the Pay As You Earn was correctly calculated and tied
up to the payslips, but he calculated it on Excel spreadsheet and it was already formulated.
So, I did not, at the end of the day the payroll was not my responsibility. I did not manage the
payroll as such, at all. I did not, employee, employees, I did not sit down and do their
employee contracts with them or decide what their basic salary should be, or their overtime,
or if they could take leave or not, or the times that they would work. I would only compile
payslips for them. I was not in control of the payroll as such.'
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[Dr Shure] 'Ok. Can we say, this is my last point. Can we say that the client took comfort,
based on your qualification, to say you can look at the payroll?'
[Applicant] 'You could, ja.'
[Dr Shure) 'OK, that's fine. That's all from me.'
[40] In my view there was no specific identification of a mistake which the applicant
allegedly made. The questions as to how the applicant will deal or dealt with mistakes
were merely hypothetical.
[41] Towards the end of the hearing, the following conclusions were made by two
members of the panel, namely Dr Shuro and Mr Padayachy, as reflected at p. 324 -
325 of the application papers:
[Chairperson) 'Ok. My colleagues, do you have anything or we can move on?'
[Dr Shure) 'Nothing. I think she's cleared the issues which I had. I think she is running away
from responsibility, if I can ... it's just like somebody signing off a document, I am supposed
to sign, but I am not supposed to look at what I am signing.'
[Mr Padayachy) 'Mmm. I get the same view, Chair. That she is not taking responsibility. l
mean if you just signing off a document without checking it, you are not doing your job that
you were hired for.' (My emphasis)
[42] The PCC consequently decided the matter on a distinctly different premise than
what the applicant was charged with, namely that she did not check for payroll-related
mistakes, that she ought to have corrected any payroll-related mistakes, that she
failed to do so and that this constituted misconduct and consequently punishable
conduct. Dr Shuro engaged the applicant on her duty to have identified and rectified
mistakes, whilst this was not the issue presented for determination within the context
of the payroll complaint.
[43] This marked shift in ground and migration of the charge violated the procedural
fairness of the proceedings. A breach of procedural fairness has the following
consequences as discussed in Administrative Law in South Africa, supra, at 533:
consequences as discussed in Administrative Law in South Africa, supra, at 533:
'At common law a breach of procedural fairness would ordinarily lead to invalidity of the
administrative decision concerned. As Baxter indicates, the principles of fairness "are
considered to be so important that they are enforced by the courts as a matter of policy,
irrespective of the merits of the particular case in question", so that the merits cannot justify
a breach of fairness ...
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As far as the PAJA is concerned, invalidity would again seem to be the natural and logical
result of non-compliance with the rules of fairness. After all, procedural unfairness is listed as
a ground of review ins 6(2)(c) of the ·PAJA and setting aside remains the default remedy of
our administrative law.'
[44] Based on the aforesaid grounds, the impugned decisions stand to be set aside.
Further grounds of review
[45] In addition to my aforesaid finding, I deem it apposite to also deal with the
remaining grounds of the applicant's review.
The process followed in reaching the impugned decisions
[46] I have detailed the complaint and charge against the applicant earlier in the
judgment.
[47] In her answering affidavit to the complaint, the applicant responded as follows
to paragraphs 13.3 and 13.4 of the complaint:
'6.8.1 The contents hereof are noted and it is denied that I was responsible for the
management and control of the company's payroll as the complainant himself dealt with the
payroll on an excel spreadsheet which he would send to me solely for purposes of generating
payslips for the employees.
6.8.2 I confirm that we considered using the FNB payroll system, however after loading the
first eight employees I realized that this ·system would not be functional. As a result, I
proceeded to utilize my own payroll system, solely for generating the payslips for the
employees of the complainant, after the payroll was sent to me by the complainant, up and
until the termination of my services by the complainant, the last of which was for the end of
October 2022.
6.8.3 I furthermore confirm that the last batch of payslips I generated was only for 18
(EIGHTEEN) employees, which was the total amount of employees then employed by the
complainant and/or the only employees of which I received any information from the
complainant, and deny that there were 28 (TWENTY-EIGHT) employees employed by the
complainant, and deny that there were 28 (TWENTY-EIGHT) employees employed by the
complainant at that time, or that I received information or instructions to generate the payslips
for 28 (TWENTY-EIGHT) employees, as alleged by the complainant. The complainant is put
to the proof hereof.
6.8.4 My understanding of my responsibilities regarding the payslips were that I would
provide employees with their payslips, only upon request from the employees to do so. This
was, therefore , not something which happened regularly and most certainly did not have any
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impact on the payments made for salaries or wages, as the complainant himself managed
the payroll system.
6.8.5 I deny that I ever failed to provide payslips timeously and note that the complainant
does not make any reference to which payslips he is referring to herein, nor does the
complainant attach any proof of these requests which were made and allegedly not complied
with. Should these payslips be for the end of November 2022, I submit that at that stage I
had already ended my services with the complainant for reasons advanced above and of
which due notice was given to the complainant in my letter of 15 November 2022 ("LL 13").
6.8.11 I therefore submit that the complainant was at all times able to make payment of
salaries and wages to his employees as he was solely responsible for managing the payroll
whereas I was only responsible for generating payslips.
6.8.12 In addition hereto, and as is evident from the above, I released any and all
documentation and records in my possession to the complainant and/or his new accountants
which would have enabled them to generate the payslips for November 2022 and to attend
to any and all accounting matters after my departure.'
[48] In the second respondent's replying affidavit (complaint) he merely denied the
aforesaid allegations by the applicant and referred to annexures 'RP11' and 'RP12'
to the said replying affidavit as 'confirmation that Mrs Lourens dealt directly with the
payroll and managed same'.
Annexures 'R1', 'RP11' and RP '14' to the second respondent's replying affidavit
(complaint)
[49] The aforesaid annexures consist of copies of extracts from WhatsApp
messages exchanged between the applicant and Mr Van Jaarsveld:
(a) At p. 194 of the application papers (p. B678 of the bundle which served before
the JCC hearing) is annexure 'R 1' to the second respondent's replying affidavit
(complaint), in which message the applicant wrote the following to Mr Van Jaarsveld:
(complaint), in which message the applicant wrote the following to Mr Van Jaarsveld:
'Goeie more. Hoop dit gaan geed. Sal jy asb onthou om jul payroll vir my te stuur? Dankie.'
(b) At p. 199 of the application papers (p. B765 of the bundle which served before
the JCC hearing), is part of annexure 'RP11' to the second respondent's replying
affidavit (complaint), which message was sent from the applicant to Mr Van Jaarsveld,
and which, on face value thereof, appears to be a payslip dated 27 May 2022, with
two messages from the applicant appearing underneath it:
'Hier is hoe die payslip lyk op FNB. Ditis nou nie so smart socs SAGE nie, maar ek dink nie
dit maak regtig saak nie.'
16
'Ek kort asseblief ID van Siyanda Jasezwend SA 124 op on May 2022 Payroll. As jy dit vir
my aanstuur dan kan ek net sy Payslip ook uitmaak.'
(c) At p. 200 bf the application papers (p. B766 of the bundle which served before
the JCC), is a further part of annexure 'RP11' to the second respondent's replying
affidavit (complaint). There are four WhatsApp messages from the applicant to Mr
Van Jaarsveld. The first message again appears to be a payslip, with a small logo of
the second respondent appearing thereon. The following message from the applicant
then reads:
'Ek is besig om al die salarisse te capture. Hier is solank 'n voorbeeld van hoe dit lyk. Kyk
asseblief deur en laat weet wat jy wil verander. Het jy nie bietjie groter Logo nie?'
A payslip is then again reflected, but this time with a bigger logo of the second
respondent appearing on it. The following message from the applicant then reads:
'Het Logo so bietjie groter gemaak.'
(d) At p. 305 of the application papers, the applicant gave the following explanations
in the JCC hearing regarding additional WhatsApp messages exchanged between
herself and Mr Van Jaarsveld, attached as annexure 'RP14' to the replying affidavit
(complaint) of the second respondent:
[Applicant] 'Okay, so, on Annexure B790 [annexure 'RP14' at p. 209 of the application
papers], the conversation led where I asked him is there anything that he would still want to
change on thi~ Excel spreadsheet before I proceed to do the payslips. And then he answered
that he is still busy doing some changes on the payroll Excel spreadsheet before I can go
ahead and also process the payslips for him.
And if you go to the first page, B792 [annexure 'RP14' at p. 208 of the application papers], I
explained to him on the fourth column of the conversation, I want to do their payslips on the
Friday, so he needs to update the spreadsheet for me, in order for me to do the salaries. And
that is how the conversation flowed, to order me to do it. And he only got to update the payroll
Excel spreadsheet later that evening .
So, that is what I want to point out. Is that I was never in control of the payroll and in paying
employees . It never relied on me to do that. He was in control of the payroll and employees,
especially appointment of employees and also when employees resigned. I was only
requested to do the payslips which I have done.'
[50] After the applicant referred to and explained the context of the abovementioned
WhatsApp messages, the Chairperson again referred to the WhatsApp messages in
general and questioned the applicant as follows thereon at p. 315 - 316 of the
application papers:
17
[Chairperson] 'OK. So, what was his role? This is in relation to payroll. Correct me if
this has nothing to do with that but as I was reading it, I felt there was .... that is
dialogue between you and the Complainant about payroll.'
[Applicant] 'Yes.'
[Chairperson] 'Which is a main complaint. So what was your role and what was his
role?'
[Applicant] 'Ok. So, if I understand you correctly, the rule was that he would send me
the Excel spreadsheet, already compiled with the final figures for the salaries, in order
for me to do the payslips. So that Excel spreadsheet that he had to compile would
contain a list of employees, the hours that they worked for that month, any deductions
and then also the nett pay that they would be paid at the end of the month.
So, he had to send me that Excel spreadsheet that he compiled, in order for me to do
the payslips. That was my role. Without that I could not compile the payslips. So
he had to send it to me within a time frame in order for me to capture all the details
and to make sure that it ties up to his Excel spreadsheet, the payslips.'
Annexure 'RP12' to the second respondent's replying affidavit (complaint)
[51) Annexure 'RP12' to the second respondent's replying affidavit (complaint), at p.
205 - 206 of the application papers, is an email, dated 5 October 2022, from the
applicant to ActionCOACH in response to a request from ActionCOACH to provide it
with a detailed description of all services provided to the second respondent in
exchange for the monthly fee which the applicant charges the second respondent. In
the said annexure 'RP12' the applicant listed, inter alia, the following two services
which are included in her monthly fee:
'2.m. Calculation of monthly salaries on monthly basis.
n. Generate Payslips to employees on monthly basis.'
She also listed the following service which she renders to the second respondent for
which she did not invoice the second respondent and does not intend to invoice it for
the service:
the service:
'3.B. Payments of salaries on a monthly basis on FNB on behalf of client.'
[52] The applicant gave the following explanations in the JCC hearing regarding
annexure 'RP12' at p. 303 - 304 and p. 305 - 306 of the application papers:
[Applicant] 'Furthermore, regarding the payslips, I want you guys to move to RP12 of the
bundle documents, which is B771. I want to clarify also this document, it is a list of services
18
that I compiled for the complainant upon request of his Action Coach on 5 October 2022, a
month before they ended my services.
And, clearly, in this document, it states all the services that I rendered. Also services that I
rendered but did not invoice them for. And I think the confusion, what I did not mention in my
affidavit, is under point 3b, I mentioned the payment of salaries on a monthly basis on FNB
on behalf of the client. So, I never paid it ·as a rule, they sometimes were busy and they
requested me to do the payments on their behalf. But it was not a monthly occasion at all. it
was just when they requested me to do so.' (My emphasis)
[Applicant] 'So, I also want to mention that as I understand from the summary from the
Secretariat, the Secretariat made a comment to say that because, that I did not mention, and
this is what I am basically saying now, I understand the Secretariat's opinion because I did
not mention that I also made payments to the employees on behalf of the complainant, that I
failed to convince them that I was [not] in charge of the payroll. I simply did not mention the
payments that I made as requested by the Complainant sometimes, because I did not think
it was relevant because I also did not invoice them for these services, if and when I did them.'
Issue regarding the eight employees
[53] I have already recorded the applicant's explanation regarding this issue, as
contained both in her answering affidavit (complaint) and during the PCC hearing.
Balance of probabilities
[54] By-Law 16.1 of Appendix 4 to SAICA's By-Laws, the Disciplinary Code and
Procedures, provides that in all disciplinary matters where the PCC is to determine
whether a member has conducted punishable conduct, the civil standard of proof on
a balance of probabilities shall apply. This entails that SAICA, who bore the burden
of proof, was required to prove that the second respondent's version on the payroll
issue is more probable than that of the applicant.
issue is more probable than that of the applicant.
[55] From the totality of the evidence dealt with above, it is evident that the version
of the second respondent and that of the applicant constitute two mutually de.structive
versions.
[56] Mr Van Aswegen, on behalf of the applicant, relied on Stellenbosch Farmers'
Winery Group Ltd and Another v Martell and Cie SA and Others (427/01) [2002]
ZASCA 98; 2003 (1) SA 11 (SCA) (6 September 2002) para 5, wherein it was
authoritatively laid down that to come to a conclusion on two irreconcilable versions,
19
a court must make findings on (a) the credibility of the various factual witnesses; (b)
their reliability; and (c) the probabilities. He contended that the record of the
proceedings is notably silent on any reasoning that on the contentious issues, one
version was more probable than the other. There is no indication that the PCC made
a credibility finding against the applicant, nor that it identified inherent probabilities
favouring the second respondent's version. He submitted that the PCC's failure to
properly apply the balance of probabilities test, constituted a material error of law and
therefore a .ground for review under PAJA.
[57] Mr Mitchell, on behalf of SAICA, submitted that the aforesaid ground of review
is a 'non-starter' because the established test in the Stellenbosch Fanners'-judgment
applies only to courts, not administrative decision-makers such as the PCC. He
submitted that there is no obligation on administrative decision-makers to assess
evidence like a court. Mr Mitchell relied on Botha NO v Governing Body for the Eljada
Institute (20530/2014) [2016] ZASCA 36 (24 March 2016) para 41, where the
following was stated:
'The high court correctly referred with approval to the observation by Professor Cora Hoexter
in her Administrative Law In South Africa, that the courts are wary of "over~judicialising"
administrative processes. In Hamata & another v Chairperson, Peninsula Technikon Internal
Disciplinary Committee & others this court referred to "the potential tyranny of artful forensic
footwork".'
[58] It is to be accepted that an administrative decision-maker such as the PCC is
not expected to assess evidence with the same rigour as a court of law. However,
since SAICA's own By-Laws require the threshold of a balance of probabilities, the
PCC was obligated to determine the probabilities, especially in the circumstances
where it was confronted with two conflicting versions . In the Kwinana-judgment,
where it was confronted with two conflicting versions . In the Kwinana-judgment,
supra, the following applicable passage is contained at paragraph 90:
'From Turner v Jockey Club of South Africa and other authorities, it is clear that natural justice
does not impose rigid, court-like procedures on domestic tribunals. Still, it does require
minimum standards of fairness and rational decision-making. The scope of natural justice
depends on the nature of the tribunal, the complexity of the issues and the severity of the
consequences for the affected individual.' (My emphasis)
20
[59] The PCC gave no reasons for the impugned decisions and there is no record of
deliberations by the panel members during which the probabilities were evaluated or
decided.
[60] Mr Mitchell submitted that the review is an appeal dressed up as a review, in
that the applicant, according to the second respondent, is disputing the factual
correctness of the impugned decisions, which is not reviewable. In this regard he
referred to Mgijima v The Premier of the Eastern Cape Province (949/2018) [2020]
ZASCA 139 (30 October 2020) at para 29:
'The principal basis of the appellant's review is that the recommendation of the Commission
and the decision of the Premier based on that recommendation, were factually wrong. In
general terms, review is concerned with whether a decision was regular or irregular , not with
whether it was 'right' or 'wrong'. That is the province of appeals - and no provision is made
in the legislation in this case for an appeal. In other words, whether the decision is a correct
decision is not open for determination on review. The appellant's counsel properly conceded
that his attack on the decision was based on it being wrong. He conceded too that in a review,
a party may not revisit the correctness of the factual findings of the administrative decision
maker .
[61] Although I agree with the aforesaid enunciated principle, I do not agree that the
applicant is relying on an error of fact. The review is clearly directed at an error in the
process of arriving at the impugned decisions.
[62] The PCC' s conclusion that the applicant was guilty of misconduct, without an
articulated or other indication that the probabilities had been considered, is in my view
indicative thereof that it did not apply the correct standard of proof.
[63) The failure to have applied the balance of probabilities test is a material error of
law and a valid ground for review under PAJA.
[64) The said failure therefore constitutes a further ground why the impugned
decisions stand to be set aside.
decisions stand to be set aside.
Rationality
[65] In terms of s 6(2)(f)(ii)(cc) of PAJA administrative action is reviewable if the
action is not rationally connected to the information before the administrator.
21
[66) In this regard Mr Van Aswegen referred to Trinity Broadcasting (Ciskei) v
Independent Communications Authority of SA (56/2003) [2003) ZASCA 119; [2003]
4 All SA 589 (SCA); 2004 (3) SA 346 (SCA) (21 November 2003) in which judgment
the Supreme Court of Appeal confirmed that for a finding to be rational, there must
be 'a rational objective basis justifying the connection made by the administrative
decision maker between the material made available and the conclusion arrived at'.
He submitted that there is no rational link between what served before the JGC and
the outcome.
[67] From the earlier contents of the judgment it is evident what material and
evidence served before the JGC for their determination of the outcome of the hearing.
[68] It has throughout been SAICA' s case that the applicant was responsible for the
management and control of the second respondent's payroll system. The applicant,
in her founding affidavit (application) stated that the notion of payroll management
encompasses more than just paying employee salaries - she listed eight key
components thereof. She therefore stated that the mere fact that she made payments
of salaries from time to time and generated payslips, does not equate to payroll
management. Considering the composition of the panel, with, interalia, two chartered
accountants, one can accept that this information was to their knowledge.
[69] Not only did the applicant in her affidavits which served before the JGC in detail
explained that she was mainly responsible for generating payslips, but she also gave
detailed explanations in this regard during her evidence before the JGC. Her version
in this regard was supported and confirmed by the contemporaneous WhatsApp
messages, Annexures 'R1', 'RP11' and RP '14' to the second respondent's replying
affidavit (complaint), which I already dealt with earlier in the judgment. She also
explained the contents of annexure 'RP12' in context. In addition, as mentioned
explained the contents of annexure 'RP12' in context. In addition, as mentioned
earlier in the judgment, her version was also contained in two letters addressed by
her attorneys to the attorneys of the second respondent, months before the complaint
was even levelled against her.
[70] In fact, from the record of the JGC hearing it is clear the prosecutor himself (on
behalf of the Secretariat) accepted, based on the totality of what served before the
22
JCC, that the applicant was not responsible for the management and control of the
payroll system in totality; that her roll did not encompass the full responsibilities for
the payroll system (although the prosecutor persisted with his view that the applicant
made herself guilty of misconduct). This is evident from the following extract from the
transcription of the hearing, as reflected at p.323 - 324 of the application papers:
[Prosecutor] ' . .. That, to the Secretariat, made it clear that at that point, before even now,
made it clear that she was responsible or she was managing payroll to a certain degree.
And those payment of those employees could be included in that management of the payroll.
Based on the information that was placed before the Secretariat, we did believe, also with
her concession that she was paying salaries, she was in some degree responsible for
managing it.'
[Chairperson] 'Ok. And then now? Do you still hold the same view?'
[Prosecutor] 'Chairperson, from the Secretariat's point of view, considering what has just
been submitted to it now, the Secretariat still holds a view that she did not efficiently manage
the duties or the role that she was playing in the payroll. Perhaps now, not to say the full
payroll duties, as she has explained how the two between her and the Complainant how their
duties were somehow intertwined, with the Complainant compiling certain information and
her having to take that information and action it further to complete the payroll system .
. . .' (My emphasis)
[71] The above shift in ground on behalf of the Secretariat did not escape the
Chairperson's notice as is evident from the following extract from the transcription
which is reflected at p. 324 of the application papers:
[Chairperson] 'Ok. So, you have ... Ok. This is very untidy, it is not a clean, and by that I
mean that it is not clear cut. So, from, let's say assuming she was right that there were parts
in this whole payroll management duty, there were roles that was played by the Complainant
and the role that was played by herself.
You are saying you are satisfied that on her role she is guilty of misconduct. Is that what you
are saying?'
[Prosecutor] 'Yes, that is what the Secretariat is putting forward.'
[72] The complaint was predicated on the allegation that the applicant was
responsible for managing and administering the second respondent's payroll system
in totality. The fundamental question was therefore whether the applicant was indeed
tasked by the second respondent to administer and manage its payroll system. There
is no indication that the JCC took the above concessions on behalf of the Secretariat
23
into consideration, even though it is crucial material in support of the applicant's case
that she did not manage and control the payroll system.
[73] Despite the aforesaid concessions on behalf of the Secretariat, the prosecutor
also failed to revisit the Secretariat's recommendation that was made without the
benefit of the additional facts and evidence presented at the hearing.
[74] The applicant's version stands uncontradicted, both regarding her restricted role
in the payroll system and in respect of the reason for having uploaded only eight
employees. The contemporaneous WhatsApp messages also support the applicant's
version.
[75] I am consequently of the view that there is no rational connection between the
impugned decisions made and the information before the JCC. The decision to find
the applicant guilty and impose the Secretariat's recommendation was not rationally
connected to the totality of the material that served before the JCC.
[76] The absence of rationality constitutes yet a further ground why the impugned
decisions stand to be set aside.
Remitting or substituting
[77] Mr Mitchell submitted that should the review succeed and the impugned
decisions set aside, the matter is to be remitted back to SAICA for further
consideration.
[78] As a general rule, the court will not substitute its own decision for that of the
releva·nt administrator; instead it will remit the matter to the administrator together
with an instruction to decide the matter again, or other appropriate directions.
[79] The aforesaid position is reflected in s 8(1)(c) of PAJA, which determines as
follows regarding remedies in proceedings for judicial review:
24
'(1) The court or tribunal, in proceedings for judicial review in terms of section 6(1 ), may
grant any order that is just and equitable, including orders-
(c) setting aside the administrative action and-
(i) remitting the matter for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional cases-
(aa) substituting or varying the administrative action or correcting a defect resulting
from the administrative action;'
[80] PAJA does not contain any guidelines as to what sort of cases might be
exceptional and therefore the courts continue to be guided by the principles
established by common law. Johannesburg City Council v Administrator, Transvaal
1969 (2) SA 72 (T) at 75H -77C deals with three common law principles, one of which
is that the court will be prepared to substitute the decision where the end result is a
foregone conclusion and it would be a waste of time to remit the decision to the
original decision-maker. See also University of the Western Cape and Others v
Member of the Executive Committee for Health and Social Services and others 1998
(3) SA 124 at 131D.
[81] The aforesaid principle was applied in Hangklip Environmental Action Group v
Minister for Agriculture, Environmental Affairs and Development Planning, Western
Cape and Others (7139/03) [2007] ZAWCHC 41; 2007 (6) SA 65 (C) (15 June 2007)
at 84H - 85 A:
'In the present case it is transparently clear to me that there was only one decision
which the first respondent could properly have made on the material available, viz. the
applicant's appeal against the third respondent's decision should have been upheld, and the
latter decision should have been set aside. It has not been suggested that there is any further
information or evidence which is not already before the Court which could possibly lead to a
different result. Mountains of paper have already been generated by this dispute. There can
be no good reason to burden the first respondent with it again. Four-and-a-half years have
be no good reason to burden the first respondent with it again. Four-and-a-half years have
passed since he made his decision. Further delays and uncertainty should be avoided, if
possible. In my view no useful purpose would be served by remitting the matter to the first
respondent so that he could reconsider his decision: there is, in my view, as I have said, only
one decision which he could properly make in the circumstances. The Court is in as good a
position as he is to make it.'
25
[82] A further principle which is, in my view, also applicable in the present matter, is
the one which was present in Theron v Ring van Wellington van die NG Sendingkerk
in Suid-Afrika 1976 (2) SA 1 (A) where it was found that the offending action, a
disciplinary decision, was 'purely judicial' in type, and therefore one which the court
was fully qualified to deal with.
[83] In the present matter all the information and evidence is already before Court.
Further, the offending act and how it is to be consid~red, is pretty much judicial. The
expertise of the two chartered accountants who formed part of the panel, has served
its purpose. Through the questions posed to the applicant during the JGC hearing, it
has become evident what professionalism is expected of an accountant in the position
of the applicant. In my view no useful purpose would be served by remitting the matter
to the JCC to reconsider its decision.
[84] When the totality of the material that served before the JGC is considered in
accordance with the applicable legal principles and in conjunction with the charge, it
is a foregone conclusion that the applicant did not make herself guilty of contravening
any of the By-Laws of SAICA or its Code of Professional Conduct.
[85] The matter is consequently not to be remitted to the JGC.
Costs
[86] The applicant sought in the amended notice of motion that such respondent who
opposes the application, be ordered to pay the costs of the application. There is no
reason why costs should not follow the outcome of the application. The parties were
ad idem that counsel's fees are to be paid on Scale B.
Order
1 The decision of the Judicial Conduct Committee of the first respondent, dated
14 November, in terms whereof the applicant was found guilty of contravention of the
first respondent's By-Laws and Code of Professional Conduct and sanctioned
accordingly, is reviewed and set aside, and substituted with the following order:
accordingly, is reviewed and set aside, and substituted with the following order:
'1.1 The applicant did not make herself guilty of contravening any of the By-
laws or Code of Professional Conduct of the first respondent.'
26
2 The first respondent is ordered to pay the costs of the application,
counsel's fees to be paid on Scale B.
I concur:
C VANZYL
JUDGE OF THE HIGH COURT
JP DAFFUE
JUDGE OF THE HIGH COURT
27
Appearances:
For the Applicant: WA van Aswegen
Instructed by: McIntyre & Van der Post Attorneys, Bloemfontein
For the First Respondent: J Mitchell
Instructed by: Symington & De Kok Attorneys, Bloemfontein