This FAQ aims to inform and update members and stakeholders about the current state of what SAICA is doing to address allegations of improper conduct against CAs(SA) in an effort to restore trust in the profession.
It takes time to conduct investigations fairly and thoroughly, particularly as SAICA has no power of subpoena and, therefore, has to go through an investigative process to gather evidence which is presented in the first instance to its Professional Conduct Committee (PCC). If the matter exceeds the jurisdiction of the PCC and is very serious in nature, the case is referred by the PCC to the Disciplinary Committee (DC). However, many cases are finalised at the PCC phase.
The PCC hearings are not open to the public but as soon as a case is referred to the DC, SAICA will inform external stakeholders after having informed the member of the hearing. The public can attend the DC’s hearings. It is further important to note that members are not allowed to have legal representation at PCC meetings, but they are allowed legal representation at DC hearings.
SAICA is determined to restore the public’s trust in a profession whose very reputation is based on ethics and standards. SAICA has previously, and will continue, to discipline members who are found guilty of contravening the SAICA By-laws and SAICA Code of Professional Conduct (the Code). It is, however, vital to hold ethical, fair and equitable processes in disciplining our members who are found to have violated this Code.
SAICA works on the principle that all its members are equal under the law and are innocent until proven guilty. Any instances where CAs(SA) have acted unethically, and thereby contravened the SAICA By-laws and the Code, need to be taken through a fair and comprehensive disciplinary process.
At the end of July 2018, the SAICA Board initiated a thorough governance review of SAICA as an organisation and the profession, including the SAICA disciplinary structures and how we communicate our disciplinary processes. The review will be conducted by specialist advisors on corporate governance and lead by Professor Mervyn King. We hope to provide initial recommendations by December 2018.
We are also relooking all our disciplinary processes and how we communicate these; how we engage in national debates on matters impacting the accounting and auditing professions; and also how we work with other industry bodies and statutory authorities to root out corruption, fraud and negligence. This requires a multi-stakeholder approach that includes global and local accounting member bodies, as well as financial regulatory authorities such as the Finance Ministry, SA Reserve Bank and Independent Regulatory Board for Auditors (IRBA).
Where a CA(SA) is also a Registered Auditor (RA) with The Independent Regulatory Board for Auditors (IRBA), the IRBA must first undertake its investigation and disciplinary process. Accordingly, in auditing related cases and allegations of improper conduct against registered auditors or former registered auditors, SAICA is obliged to refer the matter to the IRBA and to accept the IRBA findings and in most cases, the sentence imposed by the IRBA in these matters.
The role of cases enrolled before the DC are announced close to the meeting date. Thus, there is no strict order of pronouncement or prioritisation of so-called ‘high-profile’ cases. A matter is enrolled once there is sufficient evidence to take the matter to the PCC and, where necessary, the DC.
265 members are currently in the disciplinary process pipeline.
Due to the complexity and volume of complaints, the SAICA Board has approved the establishment of a specialist compliance division to further resource the investigation and disciplinary team.
Decisions of the PCC may be referred by an Accused member, to the Disciplinary Committee for the matter to be heard anew. If the PCC has cautioned, reprimanded or issued a fine, the member has a right to demand, within twenty-one (21) days after being notified in writing of the sentence, that the matter be referred to the DC. The DC shall consider the matter anew and if it finds the accused guilty of the conduct complained of, they are entitled to impose a sentence more severe than that imposed by the PCC. If an accused chooses to refer the matter to the DC, the PCC sanction shall not take effect until the DC has dealt with the matter.
SAICA’s complaints procedure and disciplinary process is based on the principles of natural justice. The disciplinary process is neither a civil nor a criminal process but a sui generis process, which follows and satisfies the rules of natural justice in that it offers both the complainant and the accused the right to be heard and the right to a fair and unbiased hearing.
In terms of the By-Laws, the findings of the PCC and DC are published on the Institute’s website if these committees order the publication of the outcomes.
Disciplinary Committee hearings of SAICA members have always been public, they have just not been announced. All that has changed is that SAICA now publicises when these hearings will be held when it is in the public interest to do so.
The Board is considering further changes to the SAICA constitution to allow the publication of the outcome of disciplinary hearings. This is in line with worldwide best practice.
This profession is built on trust and the series of investigations now underway, will lay the basis for greater public understanding and transparency by uncovering serious lapses by individual CAs(SA) and ensuring accountability where the SAICA By-laws and Code of Conduct are breached.
Depending on the nature of the breach of the SAICA By-laws or provisions of the SAICA Code of Professional Conduct by any member and upon finding such a member guilty of improper conduct, SAICA’s Professional Conduct Committee may order that the member be:
SAICA’s Disciplinary Committee may order that the member be:
SAICA institutes disciplinary proceedings against members on receipt of a formal complaint and once it becomes aware of alleged member misconduct.
In cases where members are alleged to be involved in illegal activities, SAICA liaises with the relevant authorities mandated to carry out public prosecutorial processes such as the Independent Regulatory Board for Auditors (IRBA), the Special Investigating Unit (SIU), etc.
Upon finalisation of these investigations, SAICA will be in a position to complete its own disciplinary processes against any individuals that have not complied with SAICA’s By-laws and Code of Professional Conduct.
SAICA does not have the powers to subpoena, therefore the Institute defers to these authorities prior to finalising its disciplinary processes against its members in cases where members are alleged to be involved in illegal activities.
SAICA liaises with the relevant authorities mandated to carry out public prosecutorial processes. Upon the finalisation of such public prosecutorial processes, SAICA will be in a position to complete its own disciplinary processes.
Each matter of improper conduct is judged on its own merits and with regards to the aggravating and mitigating circumstances involved.
Where the PCC believes that the alleged improper conduct will require the imposition of a sanction greater than the PCC is mandated to impose, including the sanction of exclusion from membership of SAICA, the matter will be referred to the DC for a formal hearing and findings.
The SAICA By-laws also make provision for the Board (through the DC) to cancel the membership of any member who has been removed from an office of trust on account of proven misconduct or convicted of theft, fraud, forgery; uttering a forged document or perjury and has been sentenced in respect thereof to imprisonment without a fine, or to a fine amount to be determined by the Board.
In terms of the Chartered Accountants Designation (Private) Act, 67 of 1993 only members of SAICA are entitled to use the designation of Chartered Accountant, CA(SA). In the event that a person’s membership with SAICA lapses for whatever reason, that person will no longer be entitled to use the Chartered Accountant designation. In the event that SAICA becomes aware of a former member or an individual who has never been a member making use of the designation, the matter will be investigated and will be referred to the police where necessary.
In 2016, 507 complaints were opened at SAICA. Of these, 332 involved trainee accountants accused of improper conduct in relation to examinations. (185 cases have been finalised, leading to 16 individuals being disqualified from applying for membership for periods between 3-12 months. 145 cases are ongoing.)
A further 39 trainees in non-exam cases were brought to the attention of the PCC, leaving 138 complaints that were brought against members. Overall, as at December 2016, SAICA attended to 203 of the complaints opened in 2016: 130 cases were resolved through the PCC, a further 19 at the DC, 20 complaints were resolved outside of the committees, ten were complaints against persons misrepresenting themselves as SAICA members and 24 complaints involved persons holding both membership to SAICA and registration with the Independent Regulatory Board for Auditors (IRBA) and were referred to the IRBA to investigate as part of the agreed process between the two organisations.
In 2017, 229 complaints received against members and trainees were investigated. 109 were then cleared of any wrongdoing, 9 members were suspended for 6-12 months, 77 were fined, and two were excluded from SAICA membership. With regards to the remaining cases, members were either cautioned, reprimanded, or disqualified from applying for membership or associateship.
As of July 2018, 265 members are in the disciplinary process pipeline.
The following persons are subject to the Institute’s professional authority:
*The Institute’s power to discipline its members derives from the Constitution and the By-Laws
You can complain about:
*This list is not exhaustive but is an indication of some of the alleged offences that can be reported to SAICA.
In terms of the SAICA By-Laws, a complaint must be a formal complaint in the form of an affidavit; duly commissioned by a Commissioner of Oaths. All complaints must be sent to the Project Director: Legal Compliance and Discipline, either by:
General mail:
Private Bag X32
Northlands
Sandton
2116
Hand delivery:
17 Fricker Road
Illovo
Sandton
2196
Email:
Any person, including members of SAICA, can lodge a complaint against members of the Institute, or persons over whom the Institute has professional authority, or persons who purport to be members of the Institute but in fact are not.
The Inquiry’s investigation of SAICA members employed by KPMG who are purported to have contravened the SAICA Code of Professional Conduct started in November 2017 and finished in June 2018.
SAICA is currently awaiting the final report from the Inquiry, which should be submitted by the end of August 2018.
The entire panel of the inquiry and the secretariat supporting the panel is independent. Please refer to the media releases on this matter as well as the Inquiry’s Terms of Reference here.
The alleged improprieties have absolutely no professional impact whatsoever on any trainees who are currently completing or who have in the past completed their training contracts at firms who are currently under fire for misconduct.
The process for qualifying as a chartered accountant is rigorous. Along this road, prospective chartered accountants are required to develop and demonstrate the competencies required of a chartered accountant. Part of SAICA’s role in relation to the training programme is to put measures in place to ensure that, irrespective of the specific organisation where a trainee gains experience, the quality and standard of the experience meets SAICA’s minimum requirements. At point of qualification, all newly qualified Chartered Accountants (SA) have demonstrated that they have achieved the competencies prescribed by SAICA.
KPMG is currently an accredited training office and there is no evidence to suggest at this stage that this status will change. Change to an accreditation status would only take place after the relevant process has been followed. Until this time, KPMG trainees will be treated exactly the same as all other trainees.
The question of whether or not to remain with KPMG as a trainee accountant or employee rests with the individual.
Should a trainee decide to cancel their training contract with KPMG and enter into a new training contract with another training office, their new contract will be subject to the cancellation penalty. Once a person enters into a new training contract, they may appeal the cancellation penalty to SAICA, and the relevant SAICA Committee will consider all the factors before deciding whether or not to waive the cancellation penalty. SAICA cannot guarantee in advance that the penalty will not be applied.
In line with the changes to the International Ethics Standards Board for Accountants (IESBA) Code of Ethics for Professional Accountants (IESBA Code), the SAICA Code of Professional Conduct (the Code) has been updated to include new ethics requirements and guidance relating to responding to non-compliance with laws and regulations (NOCLAR).
The new NOCLAR provisions are effective as from 15 July 2017 and apply to all SAICA members and associates, whether in public practice providing professional services to clients, or whether in business carrying out professional activities for an employing organisation. The NOCLAR provisions establish a comprehensive response framework that guides members and associates in terms of the factors to consider and the steps to be taken when they become aware of NOCLAR or suspected NOCLAR. SAICA believes that these changes are a significant development in positioning the chartered accountancy profession to play a positive role in the fight against non-compliance and the adverse activities that often stem from it, such as financial fraud, corruption, money laundering, etc. This is expected to drive positive behaviour by SAICA members and associates, which in turn will impact on the behaviour of their clients and employing organisations, as applicable.
NOCLAR stands for “Non-compliance with laws and regulations”. In the context of the Code, NOCLAR comprises acts of omission or commission, intentional or unintentional, committed by a client or by the CA(SA)’s employing organisation, or by those charged with governance, by management or by other individuals working for or under the direction of a client or the employing organisation which are contrary to the prevailing laws and regulations.
The NOCLAR provisions have been incorporated in, and form an integral part of the SAICA Code of Professional Conduct (SAICA Code). The SAICA Code is applicable to all SAICA members and associates, as well as trainee accountants under registered training contracts. Furthermore, CAs(SA) who are registered as Registered Auditors (RAs) with the Independent Regulatory Board for Auditors (IRBA) are also required to comply with the IRBA Code of Professional Conduct for Registered Auditors (IRBA Code).
It is important to note that the NOCLAR provisions apply to all members and associates, irrespective of role or function. Therefore, it applies to members and associates in public practice providing professional services to clients and those in business performing professional activities for an employing organisation.
In line with the opening statement in the SAICA Code, namely “A distinguishing mark of the accountancy profession is its acceptance of the responsibility to act in the public interest”, these provisions give recognition that in the appropriate circumstances further action may be required in the public interest in responding to NOCLAR. The requirements clarify that turning a blind eye to potential NOCLAR is not an appropriate response from SAICA members and associates, while placing renewed emphasis on the roles of management and those charged with governance (TCWG) of organisations who have the primary responsibility to ensure that business is conducted in compliance with relevant laws and regulations.
The objectives of the CA(SA) or SAICA associate are to comply with the fundamental principles of integrity and professional behaviour by alerting management and, where applicable, TCWG about the matter to seek to enable them to take appropriate action to rectify, remediate or mitigate the consequences of the identified or suspected non-compliance, or deter the commission of the non-compliance where it has not yet occurred, and to take such further action as appropriate in the public interest.
Further action could, among other actions, include the reporting of a matter to an appropriate authority under the appropriate circumstances, despite the absence of a legal obligation to do so, and without being limited by the ethical duty of confidentiality. Disclosing a matter to an appropriate authority would be at the end stage of the process in relation to serious identified or suspected NOCLAR, after consideration of a range of factors, including the appropriateness of the response of management and, where applicable, TCWG.
However, when applying the NOCLAR response framework, the CA(SA) or SAICA associate must still comply with the law and should not take any action that is contrary to the law. This would include considering whether specific legislation in the circumstances already imposes a reporting obligation, whether there are any laws or regulations that may preclude the reporting of a matter and whether there will be protection from criminal, civil or professional liability for communicating or reporting a matter.
Visit the SAICA NOCLAR Apart from the Code and related publications, members and associates are also able to access additional resources relating to NOCLAR.