Court name
High Court of eSwatini

Mulindwa v Swaziland Institute of Accounts and Others () [2000] SZHC 23 (18 February 2000);

Law report citations
Media neutral citation
[2000] SZHC 23
Coram
Sapire, CJ









1


THE
HIGH COURT OF SWAZILAND


Paul
Mulindwa-Lubega


Applicant


v


Swaziland
Institute of Accountants and Others


First
to Fifth Respondents


Case
No. 3591/97


For
Applicant Mr. Fine


For
Respondents Mr. Flynn


JUDGMENT


(18/02/2000)


The
applicant is a chartered accountant. He is the resident partner of
Deloitte & Touche, formerly Akintola Williams & Company,
which practices in Swaziland.


The
Respondent is the statutorily appointed governing body of the
Accountancy profession in Swaziland. In addition to its other
functions it is empowered and required to investigate complaints that
members of the profession have not observed the ethical and
professional conduct required of them.


The
present application is one in which the applicant seeks to interdict
the Council from carrying on with the enquiry and other relief in
relation to the enquiry. The enquiry relates to an alleged breach of
professionalism and ethics by the firm of accountants in which the
applicant is a partner.


2


The
relief claimed in the notice of motion is for an order


1.1 Declaring
that the procedure adopted by the tribunal chaired by the third
respondent and established in terms of section 15.5 of the
Accountancy Act, No. 5 of 1985 as amended by deciding:


1.2 that
on or about 17th December to prefer (sic)(proffer?) the charges
recorded in the second respondent's letter of that date against the
applicant and adjudicate on those charges;


1.3 On
or about 17th December 1996 not to give the applicant an opportunity
to give reasons why an enquiry should not be conducted;


1.4 To
allow themselves to be influenced in their decisions and rulings by a
legal representative appointed by the second respondent;


1.5 To
interrupt and limit the cross-examination conducted by the
applicant's attorney Samuel Earnshaw during the enquiry.


is
ultra vires the act or alternatively constitutes unfair
administrative justice.


2. Declaring
that.


2.1 The
completion of the enquiry chaired by the third respondent into
complaints made against the applicant has been unreasonably delayed:
and


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2.2 The
continuation thereof will constitute unfair administrative justice.


3. Interdicting
the respondents from proceeding with the enquiry in terms of section
15 of the Act into the charges brought against the Applicant in
terms of the respondent's second letter dated 17th December, 1996.


4. Calling
upon the Respondents to show cause why the rulings of the tribunal
referred to below should not be reviewed, corrected or set aside.


4.1 The
decision of the tribunal that the original complaint made by Bill
Farmer was no longer relevant and that Earnshaw was precluded from
cross examining farmer on such complaint;


4.2 the
decision and ruling of the tribunal to direct the applicant to adduce
evidence prior to the tribunal having heard all charges against the
applicant including the evidence in support thereof.


4.3 The
decision of the third to fifth respondents recorded in the letter of
5th December 1997 not to recuse themselves;


4.4 The
decisions and rulings referred to in paragraph 1 above."


The
notice of motion is confusingly composed but the import and intention
of the order sought is clear.


In
the founding affidavit after citation of the parties, the applicant
has given an account of the background events leading up to the
establishment of the


4


board
of enquiry. The essence of the matter is that a complaint has been
made to the first respondent regarding the failure of the applicant's
firm to observe proper professional standards of audit and
qualification of reports in relation to the affairs of the Swaziland
Development and Savings Bank. The applicant is said to be personally
responsible for the failure to maintain proper professional
standards.


The
complaint was made on the 28th September 1995. Bill Farmer then
employed in the Ministry of Finance, in a letter on behalf of his
Principal Secretary to the First Respondent (PM1) referred to a "July
1995 Coopers & Lybrand report" which had been made available
to the public. The report Farmer said contained serious statements
concerning the non-performing nature of the Bank's loan portfolio.
This is a rather circumspect way of saying that the report contained
findings that the bank had made a substantial number of excessively
large loans to divers customers, which had proved to be bad. The
debtors did not pay interest or repay capital and prospects of
recovery were dismal.


Some
individual loans were said to be in excess of the limit permitted by
law in relation to the capital of the bank. It is implicit that some
mention of this was to have been expected from the Applicant in the
audited reports. The Government as a major depositor found itself at
risk of a material loss.


The
complaint against the applicant and his firm was that over a long
period of reporting on their audit no disclosure was made of the
non-performing loans or to the non-performance made their value as
assets dubious. A subsidiary complaint was that no disclosure had
been made that the Bank was consistently failing to comply with the
requirements of the Central Bank that interest was not to be shown as
accruing on loans which were not being repaid nor serviced by the
payment of interest.


Clearly
to show interest as accruing is a fiction leading to gross distortion
of the accounts.

The
relevant sections of the Act read as follows:


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"PART
IV - DISCIPLINARY POWERS OF COUNCIL.


Inquiry
by council into charge of unprofessional conduct.


15.
(1) Subject to this section, Council may enquire into any charge,
complaint or allegation of unprofessional conduct against a person
registered under this Act:


Provided
that, in the case of a charge, complaint or allegation forming or
likely to form the subject of criminal proceedings in a court of law,
the Council shall postpone the inquiry until such proceedings have
been finally determined.:


Provided
further that nothing in this section shall be construed as preventing
the Council from taking disciplinary action against a person
convicted of an offence specified in section 10.

Prior
to the institution of any inquiry the registrar of the Institute
shall in writing advise the person concerned of the nature of the
charge, complaint or allegation made against him and give him a
reasonable opportunity of exculpating himself in writing and to
produce such written evidence as he may desire.


(2) If
the Council considers the answer given in terms of subsection (2) as
satisfactory, it shall not proceed with an inquiry under subsection
(1).


(3) The
council may, prior to any enquiry, conduct a preliminary
investigation of a person concerning any charge, complainant or
allegation of unprofessional conduct made against him.


6


(4) For
the purpose of conducting any inquiry by the Council under this
section, the Council shall consist of not less than two of its
members together with a law officer appointed by the Attorney General
for this purpose.


Matters
for a procedure upon inquiry by the Council.


16.
(1) A person who has been found, after inquiry held by the Council
under this Part, to be guilty of unprofessional conduct, shall be
liable to one of the following penalties: -


(a) a
caution or reprimand; or


(b) suspension
for a specified period from practising or performing acts specially
pertaining to his profession; or


(c) removal
of his name from the register.


(2) A
person whose conduct is the subject of an inquiry under this part
shall be given an opportunity to appear by himself or with a legal
practitioner to answer the charge, and to produce the evidence of any
other person in support of his defence.


(3) For
the purpose of conducting an inquiry under this section, the Council
may-


(a) summon
any person to attend and give evidence;


(b) order
the production of any book, record, document or thing which has any
bearing on the subject of the inquiry,


(c) administer
an oath through the person presiding at the inquiry.


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(4) A
summons for the attendance before the Council of a person or for the
production to it of any book, record, document or thing shall be in
such form as the Council may determine and shall be served either by
registered post or in the same manner as it would be served if it
were a subpoena issued by a subordinate court.


(5) A
person summoned as aforesaid shall be bound to obey the summons
served on him and shall be entitled to all the privileges and
immunities to which a witness subpoenaed to give evidence before the
High Court is entitled.


(6) The
Council may terminate any suspension under subsection (1) before the
expiry of such period of suspension or cause to be restored to the
register any name, which has been removed therefrom."


I
will also refer to Section 18 which affords a person whose conduct
has been inquired into certain rights of appeal.


Having
regard to the provisions of Section 18 this application in some
respect is completely premature. Section 18 reads:-


"
Any person aggrieved by the decision of Council under this part may
apply to the High Court for relief in accordance with the High Court
Rule of 1954."


This
is obviously a reference to a review for it is with reviews that the
Rule deals.


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"Provided
that the High Court shall not set aside the proceedings of the
Council by reasons only of an irregularity which did not embarrass or
prejudice the applicant in answering the charge of a conduct of his
defence. "


There
is little evidence at this stage of any prejudice caused to the
applicant by the procedure adopted by the Council. Most importantly
the enquiry is not complete and the council has made no final
decision. At this stage too it is not possible to say whether the
applicant has been prejudiced by any of the alleged irregularities
cited by him.


Any
person appealing against the decision of the Council shall do so by
lodging a Notice of Appeal with the Registrar setting out the grounds
of appeal within 14 days of the decision of the Council shall have
been communicated to him to lodge an application to the High Court
within 14 days after having served the Notice of Appeal on the
Registrar.


It
is clear that the right of appeal or review arises only after the
completion of the enquiry. On this ground alone the application
should fail.


A
copy of Farmer's letter of complaint was sent to the Applicant and
the Respondent immediately in compliance with Section 15(2) informed
the applicant of the complaint and requested a response from the
applicant, giving reasons why a disciplinary enquiry should not be
conducted.


The
Applicant promptly replied. The reply in the first place expresses
indignation that the Ministry should have issued a press statement
referring to the matters, which could be the subject matter of the
envisaged enquiry. Whatever cause for complaint the Applicant may
have had in this connection, this is not an answer to the matters
into which the Respondents are conducting their enquiry.


9


The
Applicant continued in the same letter to make submissions around the
point of non disclosure none of which seem to squarely address the
question of its alleged failure to mention the non performance of the
loans the existence or extent thereof, in its audited reports. I do
not consider it necessary or advisable to comment on this decision,
but the First Respondent determined to proceed with the enquiry, the
applicant's explanations notwithstanding.


On
9 October 1995 the Respondent resolved to conduct a formal enquiry in
terms of the Act. The Applicant was so informed and required to
attend a meeting of the committee of enquiry, which was convened on
18th December 1995. The applicant represented by his attorney Mr. S.
Earnshaw, in limine complained that he was not in a position to
prepare for the enquiry on account of what he termed of the vague
terms in which the complaint was expressed. This objection was given
serious consideration. As a result of this the tribunal postponed
further hearing initially to 9th April 1996 and on that date
indefinitely thereafter.


Matters
were resumed and the next step was that on 17th December 1996 the
Applicant was given written notice that the proceedings were to
commence on 23rd January 1997. There can be little doubt that this
enquiry was to be reconvened was a continuation of that previously
referred to. The notification sets out in full particularity the
respects in which the applicant and his firm were said to have acted
in an unprofessional manner in relation to the audit of and reporting
on the financial statements of Swaziland Development and Savings
Bank. Attached to this letter were copies of all the relevant
documents to which an answer was required. In this way the
applicant's initial complaints and vagueness were addressed and met.


The
notification includes specific reference to two respects in relation
to which the same client, arising from the main charge of failure to
qualify the


10


accounts,
in which the applicant and his firm are said to have acted in breach
of the code of professional conduct. The applicant complains that
these additional charges have been included without the procedure
prescribed in Section 15(2) of affording him the opportunity of
exculpating himself. The respondents' answer to this is that the
"additional charges" are not additional at all but arise
from and are bound up with the original complaint of misconduct
complained of in Farmer's original letter. In so far as the relief
sought in the Notice of Motion reliance on this failure and in so far
as the applicant may have a right at this stage to object to the
continuation of the enquiry on this ground there is no prejudice to
the applicant has been demonstrated and there is no reason why these
matters cannot be enquired into simultaneously with the main
complaint which was felt. Clearly the matters are bound with each
other and are relevant to the complaint.


The
form adopted by the Respondents of proffering formal charges against
the Applicant is somewhat misleading. The presenting of charges in
this manner may tend to suggest that the procedure envisaged in
Section 15 is to be adversarial as that of a Criminal court. It
obscures the underlying difference, which is that the procedure
envisaged is inquisitorial. The council is empowered and required to
investigate the complaint. To this end it may call whatever and as
many witnesses it considers it may require. These witnesses may be
heard in whatever order the Council may determine and there is no
provision in the section for cross-examination of

witnesses.


As
far as the applicant is concerned, the laws of natural justice must
be applied. Before any finding is made and acted upon so as to affect
him adversely in any way he must be appraised of the matters into
which enquiry is to be made and afforded an opportunity of presenting
evidence. This right of the person whose conduct is investigated is
expressed in section 16(2) as follows


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"(2)
A person whose conduct is the subject of an inquiry under this Part
shall be given an opportunity to appear by himself or with a legal
practitioner to answer the charge, and to produce the evidence of any
other person in support of his defence. "


No
mention is made of cross-examination and no mention is made that he
into whose conduct enquiry is being made has to be appraised even of
what other people may have said. No mention is made of any right to
be present when other witnesses are testifying nor, as I have
observed, is there any reference to the right of cross-examination.


The
present application has been made at the time when the applicant has
been called upon to take the stand and answer under oath the
allegations in the complaint. In the light of this I will examine the
relief which he seeks.


1. In
the first place he seeks an order declaring that the procedure
adopted by Council chaired by the 3rd respondent and established in
terms of Section 15 of the Accountancy Act is ultra vires and
constitutes unfair administrative justice. The point is that on or
about 17th December the additional charges enunciated in the 2nd
respondent's letter that date are res nova in respect of which he was
not given an opportunity, as contemplated in section 15 (2) to give
reasons why the enquiry should not be conducted. The answer to this
is given by the respondent and it is that the unduly close
relationship between the bank and the Applicant as its auditor is
associated with the failure to report properly in respect of the
suspect loans


2. The
applicant also complains that the respondents allowed the presence of
independent attorneys appointed by them, and were influenced by such
attorneys in their procedural decisions. A consideration of the terms
of the section will show that in the first place the commission of
enquiry and its constitution are prescribed. The description is that
for the purpose of conducting any enquiry by the council in terms of
this section the council shall consist of not


12


less
than two of its members together with a law officer appointed by the
Attorney General for this purpose. The words are "not less".
Once there are two members of the council and the law officer
appointed by the Attorney General present who participate in the
decision of the enquiry the provisions of this section are complied
with. If the council needs to have further people present to assist
it or to have people who will lead the evidence or to ask questions
on its behalf this is entirely a matter in the purview of the
council's powers in terms of the section and no complaint can be made
in this regard. As far as the additional charges are concerned I have
already dealt with this and shown that what I refer to as additional
charges are in fact matters incidental to the main complaint.


3. The
next ground is that the council interrupted and limited the
cross-examination conducted by the applicant's attorney Samuel S.
Earnshaw. The witness, Bill Farmer was considered irrelevant. This
means that the council did not contemplate relying on his testimony
on which to base their findings. Farmer was merely the person who on
behalf of the government brought the matter to the attention of the
Council. Whether the applicant has in fact got a right to cross
examine is open to doubt but in any event before any complain can be
heard by this court the enquiry must be completed and there must be a
finding adverse to the applicant. Based on the untested testimony of
Farmer. It is open to the commission to recall Farmer if relevancy of
his evidence is shown The applicant cannot on this ground avoid
giving evidence before the council when called upon to do so.


The
procedure adopted in all these respects is neither ultra vires nor
can it be said to be unfair administrative justice.


The
second prayer is for a declaration that, "the completion of the
enquiry chaired by the 3rd respondent into complaints made by the
applicant has been


13


unreasonably
delayed and that the continuation thereof would constitute unfair
administrative justice."


There
is no substance in this at all. It is true that the enquiry has
dragged on for years. This is not entirely the fault of the council
but the matter, which is being investigated, is one, which is alive
to day as much as it was in 1996. The parlous financial position of
the bank remains unremedied and the causes therefor undetermined.


There
is no reason why the passage of time should render the enquiry
unfair. Whether the passage of time is unreasonable or not, it is and
remains the statutory duty of the Council to make and complete an
enquiry. It is not for the applicant to complain that the matter had
been delayed. The continuation of the enquiry does not in my view
constitute unfair administrative justice.


The
third prayer is for an order interdicting the respondent from
proceeding with the enquiry in terms of section 15 of the Act into
the charges brought against the applicant in terms of the 2nd
respondent's letter dated 17th December 1996. There is no reason why
Council's power should be circumscribed in this manner and the
applicant is not entitled to an order in those terms.


The
forth prayer is an order calling upon the respondents to show cause
why the rulings of the tribunal referred to below, should not be
reviewed and corrected or set aside.


Once
again it seems to me that this application is premature having regard
to the provisions of section 18.


The
decision referred to are: -


1. That
the decision that the original complaint made by Bill Farmer was no
longer relevant and that Earnshaw was precluded from cross-


14


examining
Farmer on such complaint. This as I say this is really a matter to be
decided after the enquiry has come to some conclusion on the matter.
This is clearly an interim order and it is open to the applicant at
any stage before the proceedings are closed to lead whatever evidence
he may think will support his case. That would include, recalling Mr
Farmer.


2. The
decision and ruling of the tribunal to direct the applicant to adduce
evidence prior to the tribunal having heard all charges against the
applicant including the evidence in support thereof. This is a prayer
which clearly overlooks the inquisitorial nature of the proceedings
and the right of the council to pursue its enquiry in whatever manner
it sees fit and to hear whatever witnesses it wishes to hear in
whatever order it decides. There is no right to the applicant to
dictate when his evidence should be heard.


As
I have said the proceedings have to be in accordance with the audi
altered parted rule and in accordance with the rules of natural
justice. But the rules of natural justice do not dictate in what
order evidence is to be heard.


There
is also the question relating to the third to fifth respondents being
requested to recuse themselves. There is no basis for attacking this
decision and although there is a record which discloses that one or
more of the members did become impatient with the delays which were
occurring and the failure of the commission to be able to proceed
with this enquiry. That in itself does not show bias and does not
show any reason why one or other or any of the respondents should
recuse himself.


For
these reasons apart from its prematurity, and in addition thereto the
application is refused with costs.


S.W.
Sapire,

CJ