On 15 June 2023, the Minister of Finance, Enoch Godongwana, issued a notice in the Government Gazette to increase the maximum monetary fines that the Independent Regulatory Board for Auditors (IRBA) can impose on auditors and auditing firms, who have been charged with improper conduct and who admit guilt or who are found guilty following a disciplinary hearing. The new fines are significantly higher than the previous maximum of ZAR 200 000.
In respect of the IRBA imposing monetary fines, the Auditing Professions Act, 26 of 2005 (the APA) distinguishes between auditors and auditing firms who admit guilt and those who are found guilty following a disciplinary hearing. Consequent to the Minister’s notice, the maximum monetary fines which the IRBA may impose are the following:
Admission of guilt:
- ZAR 5 million per charge for an individual auditor.
- ZAR 15 million per charge for a firm of auditors.
Found guilty following a disciplinary hearing:
- ZAR 10 million per charge for an individual auditor.
- ZAR 25 million per charge for a firm of auditors.
On 16 September 2022, the Minister published the proposed increase to the maximum monetary fines for public comment, in compliance with the requirements of the APA. The increases have been implemented as per the proposed increase published in September 2022, begging the question of the effectiveness of any public comments.
Considering that monetary fines are penal in nature, the application of the increase must accord with the principle of criminal law that a penalty cannot be increased against a wrongdoer after the commission of the offence, absence of express wording or clear implication to the contrary. Webber Wentzel’s’ view is that there is no express wording or clear implication in the APA which suggests that the increased maximum monetary fines should apply to alleged improper conduct committed before the publication of the Minister’s notice on 15 June 2023.
The increased maximum fines are a major change that will likely have a significant impact on the auditing profession in South Africa. It remains to be seen how the IRBA’s new powers will affect auditors who engage in improper conduct.