Coetzee v Barot and Another (Civil Appeal No. 48 of 1995) [1996] BWCA 58; [1996] B.L.R. 872 (CA) (26 July 1996)

[Home] [Databases] [WorldLII] [Search] [Feedback]
Botswana: Court of Appeal

You are here: SAFLII >> Databases >> Botswana: Court of Appeal >> 1996 >> [1996] BWCA 58

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Coetzee v Barot and Another (Civil Appeal No. 48 of 1995) [1996] BWCA 58; [1996] B.L.R. 872 (CA) (26 July 1996)

.PDF of original document

.RTF of original document

1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 48/95
In the matter between:
LESLIE GARY COETZEE Appellant
and
PANKAJ G. BAROT First Respondent
BOTSWANA INSTITUTE OF ACCOUNTANTS Second Respondent
Mr. T. A. Cherry for the Appellant Mr. R. B. Camp for the Respondents
JUDGMENT
CORAM: Amissah J.P.
Schreiner J.A. Hoexter J.A.
AMISSAH J.P.

The appellant is an accountant. The first respondent is the Chairman of the Disciplinary Committee of the second respondent, which is the professional body for accountants to which the appellant belongs. The dispute before this Court arises from the proceedings of the Disciplinary Committee of the second

2
respondent which the first respondent presided over, and which
found the appellant guilty of professional misconduct in February
1994, reprimanding him as a result. From that finding and
sentence, the appellant applied to the High Court for an order:

"(i) that the conviction and sentence imposed by the Respondents on the Applicant and communicated to him by letter dated the 1st March, 1994, (being Annexure 'K' to the Founding Affidavit herein), and the proceedings giving rise thereto be reviewed and the said conviction and sentence be set aside;

(ii) that the First and Second Respondents pay the costs of the Application."

The respondents were accordingly called upon by the Notice of Motion to "show cause why an order should not be made reviewing the said conviction and sentence and the said proceedings and setting aside the said conviction and sentence". The proceedings before the High Court were by way of a review of the disciplinary proceedings against the appellant.

The application was heard by Cotran J. sitting in Francistown, who in a judgment delivered on 20 June 1995 dismissed the application. It is against that judgment that the appellant has appealed to this Court.

The events which led to the disciplinary proceedings are as follows. The appellant was employed in 1991 as the Finance and Administration Manager by Botswana Tyre Corporation (Pty) Ltd. [henceforth described as "BTC"], the complainant in the disciplinary proceedings. Initially, the employer and the appellant enjoyed a harmonious relationship. But relations subsequently soured between them, and by letter dated 7 April, 1993, the appellant was dismissed. That letter, written by one M. P. Dicker, the Managing Director of BTC, said: "Dear Les,

I refer to our recent discussions.

It has become apparent that you are not happy working for Botswana Tyre Corporation. Further, it would appear that you may have outside interests which would conflict with the terms of your employment and make it difficult for you to perform your duties satisfactorily.

I have given you the opportunity to tender your resignation. This has not been forthcoming. In the premises, I regret to advise you that you are hereby given three months notice of termination of your employment with the Company. Per our conversations, this notice is with effect from 1 April 1993. Should you wish to leave sooner, please discuss this with me.

Yours sincerely,"
Nearly five months later, that is on 2 September 1993, a letter
was addressed by Dicker as General Manager and one C. L. St.
Clair as Chairman of BTC to one D. E. Lethbridge, of the second
respondent Institute, complaining that:
"2. Mr. Coetzee's employment with the Corporation was terminated on three months notice on 7th April 1993.
On 8th April 1993 three cheques were encashed on the Corporation's account as follows:

(a)

Cheque No. 330101 dated 8th March 1993, payable to L G Coetzee for P4,500.00 and passed through Mr Coetzee's account.

(b)

Cheque No. 330102 dated 8th April 1993 for P4,250.00 payable to cash and cashed by Consilia Anne Coetzee on 8th April 1993.

(c)

Cheque No. 330103 dated 8th April 1993 for P4,678.03 payable to cash and cashed on 8th April 1993 by Leslie Gary Coetzee.

(d)

A further cheque was drawn on our account also dated 8th April 1993 being cheque no. 005515, expressed on the cheque stub to be payable to 'LGC - gratuity advance', for the sum of P4,500.00 which was not cashed on that date but cleared through the banking system in the normal course.

All cheques were signed by Mr Coetzee.

4
Cheques above P5,000.00 require a second signature.

The total drawings of P17,924.03 were stated by Mr Coetzee via his Attorneys, to be payment of the prorata gratuity due him after deduction of P3,321.97 which had been advanced to him by the Corporation in respect of medical expenses against his gratuity in respect of medical expenses.

Pro-rata gratuity was not payable until the expiry of the three months notice.

The Corporation discovered, subsequent to        Mr.
Coetzee's departure, a cheque no. 320197 dated   2nd
November 1992 in the sum of P4,500.00 drawn on   the

Corporation's account and signed by Mr Coetzee. The
details on the stub stated:-

'Collector of Taxes - L C, advance on gratuity'.

This payment had clearly not been taken into account when the drawings were made in April 1993 by Mr Coetzee.

All the above listed withdrawals were made without the knowledge of the Corporation and its Manager.

Mr Coetzee paid to himself the gratuity gross prior to any referral to the Commissioner of Taxes for tax clearance."

The letter ended by the following observation:

"We draw the above to your attention for your consideration and such further investigations as you think fit, should you be of the view that the above is in any way in breach of the Accountant's Act and/or your Code of ethics."

The first respondent by letter dated 15 October 1993 wrote to the appellant drawing his attention to the allegations of BTC, enclosing the BTC letter of 2 September 1993, and pointing out to the appellant that he was thereby given an opportunity "as per Rule 34(1) of the Institute" to give an explanation or answer in writing within 30 days of his letter, and reminding him that "any such explanation or answers given by you, can be used in evidence against you."

5
To this letter, the appellant replied on 20 October, saying that:

"I am sure you will appreciate that the implications of the present exercise are potentially extremely serious and therefore of great concern to me. I therefore do need to be informed on all aspects of the matter if I am to protect and defend my personal and professional interests."

He then asked for particulars including the particularisation of the improper conduct so as to be apprised of the precise charge he was required to meet. Eventually, he received a letter dated 8 November, 1993 from the first respondent saying that based on the complaint of BTC the Disciplinary Committee had reason to believe that he had been guilty of professional misconduct; that it would be investigating two accusations against him; asking the appellant to reply urgently to the points it had raised; and informing him that the Committee would require his presence at their next meeting scheduled for 24 November, 1993.

The appellant on 23 November wrote a lengthy explanation which
opened with the following point:

"1. The previous correspondence refers. In that correspondence I had attempted to have the act or acts of apparent misconduct particularised as rules of natural justice demand this. With respect this has not been done."

Nevertheless, said the appellant, he intended to fully cooperate with the Committee in order to facilitate the resolution of the complaint. Thereafter followed the appellant's analysis of the reasons for the termination of his contract of employment; among other things, alleging "self evident" bad faith against the employer; denying the charge in the BTC letter of termination of his contract which alleged conflict of interest in his part; asserting that the termination of his contract was unlawful; alleging his entitlement to the moneys for which he signed the cheques which were cashed by either himself or his wife; explaining that he did that because of BTC's known practice of placing difficulties in the way of ex-employees when their contracts determined, and that his action was in order to

forestall the necessity of him having to take legal action to obtain his entitlement; putting forward in justification a system of payment of monies above P5, 000.00 in BTC by the issue of chegues of amounts below that figure; charging the Managing Director himself with using this method of payment; stating that the motivation for his actions had no element of fraud, theft or unlawful disposal of company property, but was in exercise of a bona fide claim of right; and that the tax issue was brought up as a make-weight in building up a case against him even though there was no belief in BTC that he intended to indulge in any sort of tax evasion. Many of these matters may have nothing to do with the acts of professional misconduct that the Disciplinary Committee was interested in inquiring into. But they show that the appellant had a dispute with BTC which it was in the interest of both parties to have resolved.

The meeting of the Disciplinary Committee was duly held on 24
November, 1993. The appellant was present in person. So was the
first respondent, who chaired the Committee consisting of six
persons, and who in the transcript of the proceedings was
described by his initials, "PGB". The transcript of proceedings
begins with the following statement:

"PGB outlined the rules and the proceedings that are followed by the Committee in the handling of cases. He pointed out that the letter he had written to Mr. Coetzee had particularised the two points that the disciplinary committee was concerned about. He also said that members had taken note of Mr. Coetzee's letter and that only the relevant matter will be considered by the committee. The other points raised by Mr. Coetzee will be noted but not concentrated upon in the handling of the case as they were not relevant to the committee's matters."

I have no doubt that at this stage, the Committee was carrying out a preliminary investigation prior to charges being preferred, if a prima facie case was found against the appellant, and a hearing given to him. The procedure to be followed by the Committee at this stage is to be found in rule 34 of the

Disciplinary Rules of the second respondent. As there appears to have been some confusion about the procedure to be followed in this case, I proceed to state and comment on the relevant parts of this rule. They provide as follows:

"34 Method of enquiry into allegations of misconduct

(1) It shall be the duty of the Secretary to lay before the Disciplinary Committee any allegations, facts or circumstances which may come to his notice and which prima facie appear to indicate that any member or student (hereinafter referred to as the accused) may have been guilty of improper conduct: Provided that in the case of alleged improper conduct reported to the Disciplinary Committee, the person making the complaint or charge or allegation (hereinafter referred to as the complainant) shall furnish a written statement in the form wherever possible of an affidavit detailing in precise terms the specific acts or failure complained of: Provided further that in any case where the Secretary has in his possession prima facie evidence that the accused has contravened any of the provisions of the First Schedule of the Act, he may, in his discretion, advise the accused in writing of the nature of the conduct imputed to him and afford him an opportunity of giving an explanation or answer in writing, within 30 (thirty) days after the date of such notice, and at the same time warn him that such explanation or answer may be used in evidence against him."

Pausing here for the moment, I think I should point out that this paragraph specifies two methods by which proceedings may be commenced. The first method calls for the Secretary of the Committee to bring to the attention of the Committee any report of improper conduct made against an accused. If the allegation or charge is made by a complainant, the complaint should wherever possible be embodied in an affidavit which details in precise terms the specific acts or failure complained of. The second course deals with a case where the Secretary has in his possession prima facie evidence that the accused has contravened any of the provisions of the First Schedule of the Act. In that case, the Secretary himself may, in his discretion, advise the

8
accused in writing of the nature of the conduct imputed to him
and afford him an opportunity of giving an explanation or answer
in writing, within 30 (thirty) days after the date of such
notice. If the Secretary decides to call upon the accused to
give an explanation, he should at the same time warn him that
such explanation or answer may be used in evidence against him.
As this second method is, according to the rule, to be followed
where there is prima facie evidence of a contravention of the
First Schedule of the Act, I digress briefly to state what that
Schedule is. The Act referred to in rule 34(1) above, is the
Accountants Act, 1988 (Act No. 16 of 1988), which established the
second respondent Institute. Part V of that Act deals with
matters of discipline. And section 24 which appears in that Part
provides that:

"24. A member of the Institute shall be guilty of professional misconduct if he commits any of the acts or omissions set out in the First Schedule."

The First Schedule gives a list of "Acts or Omissions
Constituting Professional Misconduct." Nineteen separate acts
cr omissions are then listed, each of which on the part of an
accountant registered under the Act constitutes professional
misconduct; the last of these is an omnibus offence cast in these
terms:

"(s) generally, doing any act which is likely to bring the profession of accountancy or the Institute into disgrace, contempt or disrespect."

It would appear that the charges against the appellant were brought under this paragraph. Having regard to the general terms in which the paragraph is framed, I think a proper charge brought under it should give particulars not only of the conduct complained of, but also the reasons why the accusers consider it likely to bring the profession or the Institute into disgrace, contempt or disrespect. If there is a Code of Conduct of the profession which has been breached, the provision of that Code should be referred to. Turning back to the investigation

9
procedures laid down in rule 34, paragraph (2) states as follows:

"(2) Subject to the first proviso in paragraph (1), the Disciplinary Committee shall consider any allegations, facts or circumstances laid before it by the Secretary in terms of that paragraph and may make such enguiries (including enquiries of the accused) and obtain such legal or other advice, assistance or information in connection therewith as it considers necessary: Provided that whenever enquiries are made of the accused, he shall be warned that any explanation, answer or information may be used in evidence against him."

Difficulties have been created by the way in which the rule has been drafted. But it seems as if the paragraph deals with a case which has been commenced by the first method indicated above. This view is supported by paragraph (4), as will be seen from my subsequent comment on that paragraph. The Committee, according to paragraph (2) is then obliged to consider the allegations, facts or circumstances laid before it by the Secretary and make such enquiries as it considers necessary, including enquiries of the accused, whom the Committee must warn about the possibility of explanations or information provided by him being used in evidence against him. It should be emphasised that the Committee is directed at this stage to obtain such legal and other advice, assistance or information in connection with its enquiries as it considers necessary. There should, therefore, be no cause for an excuse advanced by the Committee on the ground that it acted merely as body of accountants without knowledge of legal forms or procedures.

Paragraph (3) of rule 34 deals with the position where either before or after the making of enquiries or obtaining advice or assistance, the Disciplinary Committee forms the unanimous opinion that the conduct complained of does not constitute improper conduct. It is given the power to decide at that point not to proceed further in the matter, and to advise the complainant accordingly. If the Committee, on the other hand, forms the opinion that there is cause for further investigation,

10
paragraph (4) of the rule states that:

"(4) If the Disciplinary Committee has reason to believe that the accused has been guilty of improper conduct, it shall advise him and afford him an opportunity of giving an explanation or answer in writing within 30 (thirty) days after the date of such notice, and at the same time warn him that such explanation or answer may be used in evidence against him."

In both paragraphs (1) and (4), the rule provides for the accused being advised of the reason for the belief that he has been guilty of improper conduct. In the case of a suspected contravention of the provisions of the First Schedule, it is the Secretary who is empowered to form the view to call for an explanation from the accused. In other cases, it is the Committee which comes to this view after investigation of a report, which may be supported by affidavit, laid before it by the Secretary. It seems to me highly improbable that in the course of the investigation, the rule should give two cumulative periods of 30 days for the explanation of charge of improper conduct. The period of 30 days granted at this stage is exercised once and depends on the method of commencement of proceedings adopted

If on the receipt of the explanation or answer from the accused, the Disciplinary Committee is satisfied that the accused had given an acceptable explanation or answer in respect of the conduct imputed to him; or the imputed conduct does not constitute improper conduct; or there is no reasonable prospect of proving that he has been guilty of the imputed conduct, the Committee may, in accordance with paragraph (5) of the rule, decide to proceed no further in the matter. In which case, the Committee must so advise the complainant. If, on the other hand, the accused admits guilt of the improper conduct alleged, the Committee must, in terms of paragraph (6), invite the accused to make representations as to the punishment to be imposed, affording him a reasonable time within which to make such

11
representations or submissions. Thereafter, the Committee may
impose a punishment within its powers. Paragraph (7) requires
that notice of the decision of the Committee be sent to the
accused by registered post to his last known address and reported
to the Council of the second respondent. Paragraph (8) then
deals with cases which are not disposed of by either a dismissal
of the complaint or an admission of guilt. It provides that:

"(8) Any case of alleged improper conduct not disposed of as provided for in this rule shall form the subject of a hearing or enquiry to be conducted by the Disciplinary Committee in accordance with the procedure outlined in these rules."

Such would be the case if at the end of the enquiry stage regulated by rule 34, the Committee comes to the conclusion that the accused has a case to answer at a proper hearing. The proceedings from then are no more regulated by rule 34 but by rule 35. The two proceedings, in my opinion, are different and distinct. It must be clear to the Disciplinary Committee and the accused that the investigation stage is over and that now the Committee is proceeding to a hearing under Rule 35. The gravamen of the charge levelled against the proceedings conducted by the Disciplinary Committee in the present case is that there was no such clear distinction made by the Committee.

Rule 35 makes provision for the notification of the accused; the subpoenaing of witnesses; and the appointment of a pre forma complainant. Then it goes on to prescribe detailed regulations governing the procedures to be followed where the accused is present in person; where the accused is neither present or represented; where the accused pleads guilty to some or all of the charges; where the accused is present and pro forma complainant is not appointed; and where the accused is not present or represented and pro forma complainant is not appointed. These are followed by provisions of a general nature, and provisions on the findings of the Disciplinary Committee. Not all the provisions are relevant to the case before us. Those

12
which apply will be referred to in due course.

The transcript of the proceedings held on 24 November, 1993 was in the form of exchanges between the members of the Committee on the one hand and the accused on the other. At the end of the proceedings, the transcript read as follows:

"Members thereafter deliberated on the issue.

It was felt that whilst he was also guilty, in members' opinion, as far as doing outside work was concerned, this charge was dropped as:

(a) his contract of employment was silent about this clause, and
(b) this was not considered serious enough therefore to fall within the First Schedule of the Act.

However, as far as the gratuity withdrawal without proper authorization and obtaining tax directive was concerned, it was felt that he has a case to answer. It was therefore decided to investigate the matter in detail based on the above two charges. The Chairman will send out the letter specifying the charges against him giving him an opportunity to explain his position either in person and/or through an Attorney, as required by the rules.

With this the session was closed."

There is no evidence that the Committee's conclusion after the proceedings of 24 November, 1993 that the appellant had a case to answer, as indicated by this record, was communicated to the appellant. Nor was there any evidence that the appellant was, at this stage, notified that there would be a hearing in terms of rule 35. The relevant paragraphs of rule 35 in this regard are as follows:

"Notifying the accused

(1) In the case of alleged improper conduct which is to form the subject of a hearing or enquiry, the Secretary shall notify the accused of the nature of the charge preferred against him. At the same time the accused shall be furnished with a copy of these rules and be warned that any written answer which he

13
may make to the charge may be used in evidence against him.

(2) The notice referred to in paragraph (1) shall be served on the accused at his registered address, or, in the absence thereof, at his last known address."

In my opinion, what should have happened was that the Secretary should have notified the appellant of the Committee's finding at the end of the 24 November session, namely, that the Committee was, after investigation, of the opinion that the appellant had a case to answer; and that there would now be a hearing of the case in accordance with rule 35. The notice served should have specified the charges which the appellant had to meet at the hearing; and should have fixed a date for the hearing. It should have informed the appellant that he could appear at the hearing in person or be represented by a lawyer; and that he was at liberty to answer the charges in writing, in which case, his answer might be used in evidence against him. It will be noted that the notification need not, according to the rule, specify that he had 30 days within which to answer the charge. What is required is the fixing of a time for the hearing, which, in the absence of any specified period, should be reasonable to enable the accused to prepare for his defence; and notification to him of the time so fixed.

What actually happened, however, was that on 26 November, that is, two days after the investigation meeting of the Disciplinary Committee, the appellant wrote a very long letter expanding on his explanations to the Committee. This indicates that at that time, the appellant did not know of the decision of the Committee that there should now be a proper hearing of the charges against him, and that in his own mind he was making further representations in explanation of his conduct to the Committee which was still investigating the matter. Instead of informing him of its decision to hold a hearing on charges specified, the Committee wrote to the appellant on 27 January, 1994 referring

14
to the appellant's letter of 23 November, 1993, which had actually preceded the investigation meeting of 24 November and saying as follows: "Dear Sir,
RE: COMPLAINT FROM BOTSWANA TYRE CORPORATION

We refer to your letter dated 23rd November, 1993 and all the correspondence referred to in your above letter.

We note that you feel that the alleged misconduct against you has not been particularised. Our letter dated 15th October 1993 did specify the nature of charges being investigated against you; which was merely for conducting preliminary inquiry on the matter.

Pursuant to the above inquiry and as per Rule 34(4) we now particularise the following charges against you.

'The Disciplinary committee has reason to believe that you may have been guilty of a professional misconduct in so far as - Upon termination of your Contract of employment with Botswana Tyre Corporation, you withdrew your own Gratuity without first obtaining:

a) Proper authorization in terms of getting another signature on the cheque as required by company procedures and accepted ethical behaviour expected of a professional person;

b) Tax clearance Certificate as required by Tax Laws of Botswana; and thereby acting in a manner, which is likely to bring the profession of Accounting or Institute into disgrace, contempt or disrespect, as per clause (s) of the First Schedule of the Accountant's Act 1988.'

You are required to give an explanation or answer in writing within 30 days of this letter to the above charge. As is customary, may we remind you that any such explanation or answers given by you can be used in evidence against you.

We have enclosed a copy of the Rules and regulations of the BIA, and draw your attention particularly to Part VI relating to 'Discipline¹.

The next meeting of the of the Disciplinary Committee is due to be held on 23d February 1994 at 5.15 at Trans African Wholesalers, Plot 1243 Haile Sellasie Road. If you wish to represent your case in person or by a

15
Representative, duly authorised in writing, you may do so at the above meeting.
Yours faithfully,
P.G.Barot
Chairman
Disciplinary Committee."

No doubt, some of the requirements of rule 35 had been satisfied in the letter. The charges preferred against the appellant had been specified; he had been furnished with a copy of the rules; and he was warned that any written answer made by him to the charge might be used in evidence against him. But the fact remains that the Chairman's letter drew the attention of the appellant not to the conclusion arrived by the Committee at the end of the 24 November investigation session, but to a letter of prior date in which the appellant was said to have been asking for particularisation of the conduct which was under investigation by the Disciplinary Committee. The letter stated specifically that the particulars of the charges were being made "as per Rule 34(4)", which deals with the enquiry stage of proceedings and not the hearing. As in rule 34(4), the Chairman's letter called for an answer within 30 days, a specification of time which rule 35 does not require. The question which falls for consideration is, whether or not a letter couched in this form would not have suggested to an accused that the proceedings had not progressed beyond the enquiry stage and were still continuing under rule 34?

On 23 February, the appellant duly appeared before the Disciplinary Committee, this time represented by Mr. Cherry. The fact that there was some confusion, not only in the mind of the Committtee but also in the minds of the appellant and his representative, about what rule the Committee was proceeding under, was demonstrated by the two preliminary points which were raised by Mr. Cherry at these proceddings, and which, according

13.
to the transcript of proceedings, took some time to dispose of.
The first was whether the 30 days, presumably allowed by rule
34(4), but in any case indicated by the first respondent's letter
of 27 January, had expired at the time of the current meeting.
After a considerable time had been taken by this objection, it
was settled by the Mr. Cherry agreeing, according to the
transcript, "that although 30 days had not elapsed they were
willing to proceed." The second objection raised was in
connection with the word "may" in rule 34. According to Mr.
Cherry this was not sufficient to justify the proceedings under
the rule. According to the transcript:
"TAC [that is Mr. Cherry] read out Rules 34(1) and 34(4) and said that the letter of 27th should have been in terms with section 34(4) wherein the committee TAC pointed out that this implied that the committee was not satisfied from last hearing to frame a charge."

The second objection raised by Mr. Cherry was in due course resolved, when he said, according to the transcript that "the meeting could proceed having noted his points.

Now if there had been no confusion on the part of the appellant and his representative, this objection could not have been raised. If there had been no confusion on the part of the Committee, the objection when raised would have been disposed of by a curt remark that the Committee was not proceeding under rule 34(4) . The Committee rather pointed out that they were accountants and not lawyers, and what they were concerned with was not the technicalities of the procedure. I have some sympathy for the first respondent and the members of his committee who are not lawyers for failure to strictly comply with the Rules as lawyers would. But that is no justification for abandoning all semblance of drawing a simple but fundamental distinction between the requirements for an enquiry and the requirements for a hearing as laid down in rules 34 and 35 of Rules which they were under an obligation to apply. The Rules do not appear to be difficult to follow step by step. Even if

the members of the Committee thought otherwise, as accountants, I expect them to be intelligent enough to realise that Rules which are too complicated for them to understand should be referred to a lawyer for advice. Otherwise, the danger in muddling up the procedures is that those who come before them are also liable to be confused, and justice might as a consequence be denied them. In cases where professional reputations are at stake, that may lead to very serious and undesirable consequences. That consultation or the appointment of a lawyer to assist the Committee would involve expenditure of money cannot be a justifiable reason for avoiding such a course in as grave a matter as a hearing which affects a man's professional status.

Rule 34(2) empowers the Committee to obtain legal advice in connection with the enquiry stage, and where the matter gets to a hearing, rule 35 provides for the engagement of a lawyer, who could be an advocate or attorney, or the Secretary to act as a pro forma complainant. For convenience, I quote Rule 35 on this point where it says:

"Pro forma complainant

(1) Wherever any case of alleged improper conduct is to form the subject of a hearing or enquiry, the Disciplinary Committee may appoint an attorney or advocate or the Secretary (hereinafter referred to as the pro forma complainant) and if a pro forma complainant is appointed all evidence in support of the charge preferred against the accused shall be led and produced by the pro forma complainant."

Although the appointment of the pro forma complainant is a matter of discretion for the Committee, it is obvious that the Rules contemplate a hearing which, if not of equal formality to a trial of an accused person on a criminal charge, to some extent approximates to that. Other parts of Rule 35 confirm this view. The possibility of calling witnesses at the instance of the complainant, the accused or the Committee mero motu, is dealt with; so are the varying situations where, for example, where the

18
accused is present, not present, present in person, or is represented etc. On witnesses, rule 35 says: "Subpoenaing of witness(es)

(1) In all cases where the complainant or accused expresses a desire to have witnesses subpoenaed to give evidence, or where the Disciplinary Committee itself desires to subpoena any witness including the complainant, the Chairman of the Disciplinary Committee or a person authorised by the Disciplinary Committee shall sign the necessary subpoenas, which shall be in form to be determined by the Disciplinary Committee.

I omit paragraph (2) which deals with the deposit of money by the
accused if he wishes to call witnesses to give evidence, and
quote paragraph (3) on the manner in which evidence should be
given. It says:

" (3) All verbal evidence may be taken on oath or affirmation which shall be administered or accepted by the Chairman of the Disciplinary Committee or a person authorised thereto by the Disciplinary Committee."

Even where the accused fails to appear nor have a representative appear on his behalf, the Rule provides certain minimum procedural safeguards as to what should be done before a decision which might adversely affect him is taken. That part of rule 35 requires that:

"Where accused is not present or represented

Where the accused is not present or represented at the hearing or enquiry at which a pro forma complainant has been appointed to act, the order of procedure shall be as follows:

(1)

Proof of service on the accused of the notice of hearing or enquiry shall be produced to the Disciplinary Committee, but it shall not be necessary for such notice to be read unless the Chairman of the Disciplinary Committee directs that it shall not be read.

(2)

The pro forma complainant shall state his case and then produce his evidence in support of it. [emphasis supplied]

19
Although in such a case, paragraph (3) provides that it shall not
be necessary for formal evidence to be given on oath, the
Disciplinary Committee having a discretion to consider and take
cognisance of any written statement or evidence produced as
evidence by the pro forma complainant. And where the accused is
not present or represented at the hearing and no pro forma
complainant is appointed, the Committee has the discretion to
adopt such procedure as it may deem fit. If procedural processes
are laid down even for cases where the accused does not appear
or have any representation at the hearing, the likelihood of the
rule regulating more closely the proceedings where the accused
appears is greater. And this rule 35 does in these provisions:

"Where accused is present and pro forma complainant not appointed

Where the accused is present in person at a hearing or enquiry at which a pro forma complainant has not been appointed to act, the order of procedure shall be as follows:

(1)

The Chairman of the Disciplinary Committee or the Secretary shall read the notice of the hearing or enquiry addressed to the accused unless the accused or his representative duly authorised in writing agrees to dispense with the reading of such notice.

(2)

The Disciplinary Committee shall hear and examine such witnesses, if any, as it has subpoenaed to give evidence in relation to the charge or charges preferred against the accused. The accused or his representative duly authorised in writing shall be entitled to cross-examine any such witness.

(3)

At the conclusion of the case presented against him, the accused shall be afforded the opportunity of stating his case or defence, either by himself or by his representative duly authorised in writing, and thereafter of leading evidence in support thereof. If he states his defence in writing, his statement shall be read.

(4)

At the conclusion of the case for the accused, the latter or his representative duly authorised in writing shall be entitled to address the Disciplinary Committee on the case in defence of the accused."

This is the rule which governs a hearing of a case like the present. The responsibility for ensuring that the Rules are complied with lies with the Committee. I am unable to subscribe to the view that where the accused is represented, the Committee is entitled to ride rough shod over the Rules and later claim that they are exonerated from so doing because the representative of the accused did not object at the time. It is the Committee which has witnesses required by the accused or who are material to proof of the case are called; it is the Committee which should ensure that the accused is afforded the opportunity of stating his case, and thereafter of leading evidence in support of it. If the Committee fails in this duty, the hearing or enquiry is flawed. But these obligations can be carried out by the Committee only if it appreciates the proceedings, and makes it clear to those affected that those are proceedings which it is following. Giving the impression that it is applying rule 34 procedures when in fact it wants to be taken to be following rule 35 procedures simply creates confusion.

The proceedings of 23 February, 1994 which the first respondent and the other members of the Disciplinary Committee want us to take as the hearing did not follow the laid down rules. It was obvious from the letter written by the appellant as far back as 23 November, 1993 that he wanted to have the opportunity of cross-examining the Managing Director of BTC, among other things, on the suggestion implied as the basis of the charge relating to the signing of cheques, that cheques over P5,000 required two signatures, and especially as regards the alleged practice in the company of avoiding the rule by issuing two or more cheques of smaller amounts. There might have been other points on which he wanted to have Mr. Dicker or some other person called as a witness. I cannot now say who or what witnesses he would have called and on which issues. The fact that the Committee did not give clarity to the nature of the proceedings it was following might well have prevented the accused from asking for Mr. Dicker

21
or other witnesses to be called.

I have cited the Rules at length in order to demonstrate that the proceedings that the Disciplinary Committee embarked upon are closely regulated. The purpose of rules is that they are to be complied with. Detailed analysis of the transcript of the proceedings is not necessary to show that the rules were, in this case, not observed. In general, what the transcript shows is a mixture of objections, obviously irrelevant to a hearing, submissions, exchanges forwards and backwards between members of the Committee, appellant's representative or appellant himself. Instead of following a procedure of a hearing of the case against the accused, then allowing him to put forward his defence, thereafter followed by his address to the Committee on his case, the Committee followed a course reminiscent of that which it followed previously in the investigation of the 24 November, 1993. It is difficult to avoid the conclusion that in the mind of the Committee they were following the course of investigation which they set out in the earlier proceedings. This, of course was started by the fact that the invitation to appear on the second occasion was issued, not under the appropriate rule for a hearing, but under rule 34(4). The appellant, as a result was condemned without a proper hearing according to the Rules. I think this is a serious irregularity which vitiates the finding of guilt and the consequent reprimand.

My feeling of unease with the whole proceedings is not alleviated
by the transcript of matters leading to the finding of guilt.
As I began the review of the abortive hearing by a quotation of
the invitation to the appellant to the Disciplinary Committee
meeting of 23 February, 1994, I end with a quotation of the
decision on guilt of the Committee. It says:

"Members of the Committee discussed the matter further. They deliberated on the various points raised during the hearing. They felt that the public perception of the case will have to be looked at very carefully. Some of the

t
22

members pointed out that the contract of employment was wrongly drawn up. RST pointed out that the fact of oversight on the deduction has also to be looked at as this was material enough for the case. In a nutshell, it was clear that LGC did not ask the employer for his gratuity and acted on presumption. Public perception of the case will be such that 'if no action taken - it will give a bad neme (sic) to the BIA¹, and this would not change even if gratuity was legally due to him. Good professional conduct in the circumstances of this case required him to wait for his gratuity as well, like his other dues. All members agreed that LGC was guilty as charged on both counts."

It seems to me that even at the end, the Committee was still discussing what it was that the appellant had done which brought the profession into disgrace, contempt or disrespect. But the nature of the act and its tendency to adversely affect the reputation of the profession ought to have been determined at the investigation stage and particulars of the nature and tendency specified in the charge for the hearing. The discussions at this stage lend themselves to the interpretation that the members of the Committee were themselves not sure that the conduct charged was wrong, but were afraid that the Institute of Accountants would get a bad name with the public, if they did not do something to the appellant, a fellow-accountant, once he had been brought before the Committee, it did not take some action against him. I think such a view would be unfortunate to the administration of impartial justice in disciplinary proceedings.

Upon the review of the proceedings, I am of the opinion that the
ttie
appeal should be allowed, and the finding of guilt by Committee

and the sentence imposed on the appellant set aside. I would have ordered that the matter be sent back for re-hearing. But having regard to the whole proceedings, including the abortive hearing, the discussions preceding the finding of guilt, and the punishment which the Committee thought appropriate, I think it would be difficult for justice to be done on a re-hearing. I therefore make no such order. The appellant should have his costs.

GIVEN AT LOBATSE this 26^th
day of July, 1996,

A. N.E. AMISSAH
Judge President

I agree
W.H.R. SCHREINER Judge of Appeal

I agree
G. G. HOEXTER

Judge of Appeal

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1996/58.html