The Law Society of the Northern Provinces Incorporated as the Law Society of the Transvaal v Jacobus Tapedi Maseka and Bophuthatswana Law Society

The applicant, the Law Society of the Northern Provinces (formerly the Law Society of the Transvaal), applied for a mandamus compelling the first respondent, attorney Jacobus Tapedi Maseka, who practised in the former Bophuthatswana area, to produce his accounting and trust records for inspection. The application was opposed by Maseka and the Bophuthatswana Law Society. The inspection was sought after the applicant received a complaint from Mrs Johanna Mekgwe alleging that Maseka had acted for her son in a Road Accident Fund claim arising from a 1999 motor vehicle accident, had failed to keep her informed, and that the RAF had paid R6 605.21 to him on 3 July 2000 without him properly accounting to the client or paying over money due. Maseka denied wrongdoing, contended that he had accounted to the client, and argued that the application was vexatious. He also raised preliminary points concerning non-joinder, the applicant's lack of jurisdiction, and lack of locus standi, though misjoinder was cured and locus standi was abandoned. The central dispute became whether the applicant law society had jurisdiction to inspect his records and whether it had to afford him a hearing before deciding to do so.

• Whether the Law Society of the Northern Provinces had jurisdiction under section 71 of the Attorneys Act 53 of 1979 over an attorney practising in the former Bophuthatswana area whose name was on the roll of the Transvaal Provincial Division
• Whether section 84A of the Attorneys Act 53 of 1979 conferred concurrent jurisdiction on the applicant law society in respect of practitioners in the former Bophuthatswana, and if so whether that jurisdiction was limited to fidelity fund matters
• Whether the applicant was entitled under section 70 of the Attorneys Act 53 of 1979, or the equivalent provision in the Bophuthatswana Attorneys Act 29 of 1984, to compel production of the first respondent's accounting records for inspection
• Whether the decision to inspect constituted administrative action under PAJA requiring prior procedural fairness and a hearing
• Whether the applicant had made out at least a prima facie basis for inspection of the first respondent's books and records

The application succeeded. The court ordered the first respondent to produce for inspection his accounting records relating to his legal practice, including trust-related records and records concerning money received, held or paid on behalf of others. If he failed to comply within seven days, the sheriff was authorised to take possession of the relevant items. The first and second respondents were ordered to pay the applicant's costs.

Section 84A of the Attorneys Act 53 of 1979 confers concurrent jurisdiction on the Law Society of the Transvaal/Northern Provinces and the Bophuthatswana Law Society over practitioners practising in the former Bophuthatswana in respect of the matters expressly listed in that section, and that jurisdiction is not confined to fidelity fund matters. In addition, section 70 authorises a law society to compel production of an attorney's records for inspection where there is a prima facie basis to investigate possible unprofessional conduct. A decision to initiate such inspection is investigative in character and, absent a material and adverse effect on rights in the administrative-law sense, does not necessarily require a prior hearing under PAJA.

The court observed that the legal regulation of attorneys in the former Bophuthatswana was 'a little complicated and not altogether satisfactory' and discussed the historical difficulties created by the former TBVC legal regimes, including fidelity fund and admission issues. The court also noted that, although it would ordinarily be disinclined to make a costs order between law societies, costs would follow the result in this case. Finally, the court stated that it had not relied on a separate complaint by the first respondent's professional assistant, expressing the assumption that the Bophuthatswana Law Society would give that complaint appropriate attention.

The case is significant for South African legal profession regulation because it clarifies that, in relation to practitioners in the former Bophuthatswana, the Law Society of the Northern Provinces and the Bophuthatswana Law Society could exercise concurrent jurisdiction under section 84A of the Attorneys Act 53 of 1979. It also confirms that the inspection power over attorneys' accounting records is a preliminary investigative mechanism that may be invoked on a prima facie basis and is not necessarily subject to full prior hearing requirements under PAJA. The judgment is important in understanding the transitional and overlapping regulatory framework governing attorneys in former TBVC territories.