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Issue 35 | July-September 2016
14
LEGAL
Disciplinary Committee
The Disciplinary Committee did not sit during this period.
In the last issue I indicated that I would report on the matter of Mr
TM that was finalised in June. What follows is a fair summary of the
charges on which Mr TM was found guilty, the findings and sanction
imposed by the Disciplinary Committee.
The practitioner faced four charges of improper conduct.
The
first charge
(Rules 2.6, 2.13, 2.15 and 2.17 of the Rules
Regarding Improper Conduct) arises from the practitioner’s failure
to comply with the following conditions of a suspended sentence
previously imposed on him pursuant to a disciplinary hearing in
October 2011:
1. Failure to pay the unsuspended portion of the fine on the due
date and failure to pay the cost contribution upon demand; and
2. Failure to attend a course approved by the IRBA for the auditing
of attorneys’ trust accounts, and his subsequent conduct in
proceeding to audit the trust accounts of several attorneys.
The essence of the
second charge
(Rules 2.6, 2.12 and 2.17
of the Rules Regarding Improper Conduct) is that the practitioner
failed to respond to the IRBA’s requests to comply with payment of
the monetary claims arising from the fine imposed on him and the
cost contribution he was directed to pay when he was obliged to
respond to such requests.
The
third charge
(Rules 2.6, 2.12, 2.13 and 2.17 of the Rules
Regarding Improper Conduct) arises from the practitioner’s failure
to complete and submit to the IRBA his annual inspection audit
returns for the period 1 January 2012 to 31 December 2012 in
respect of the assurance work he had performed during that period
relating to the audit of certain attorneys’ trust accounts which he
had undertaken.
In respect of the
fourth charge
(Rules 2.6, 2.12, 2.13 and 2.17 of
the Rules Regarding Improper Conduct), the practitioner had made
an incomplete disclosure in the annual audit inspection returns for
the period 1 January 2013 to 31 December 2013 by knowingly
failing to reflect that during that period he had completed assurance
reports in respect of certain attorneys’ trust accounts whose details
were not disclosed in the returns.
At the commencement of the proceedings on 7 June 2016, the
Committee was notified of a summons which was issued in the
South Gauteng High Court by the practitioner and served on the
IRBA a day before the hearing. Relying on the court proceedings
initiated, the practitioner sought the postponement of the hearing
on the grounds that his conviction and sentence in the previous
proceedings were unlawful and would be set aside by the court.
The request for the postponement was opposed by the
pro forma
complainant. After submissions from the parties, the Committee
resolved to refuse the request for the postponement and directed
that the matter proceed. The practitioner then elected not to
participate in the proceedings, which continued in his absence.
The practitioner was found guilty of all four charges of improper
conduct. In respect of sanction, the Committee ordered the
immediate cancellation of the practitioner’s registration and removal
of his name from the register. The Committee directed that a fair
summary of the charges, the findings and sentence imposed,
without the name of the practitioner or the name of his firm, be
published in the
IRBA News
.
After having been informed of the Committee’s decision, the
practitioner launched two applications (in addition to the summons)
in the South Gauteng High Court to have the findings in the October
2011 and current hearings set aside. The IRBA defended all three
matters and on 6 September 2016 the court set aside all three
matters as being irregular, and they were dismissed with costs.
Reportable Irregularities
Reportable irregularities (RIs) for the quarter April-June 2016
(Note that RIs are reported on quarterly in arrears)
201 second reports were received, of which:
-
RIs were continuing
137
-
RIs were not continuing
59
-
RIs did not exist
5
Of the 137 continuing RIs received, the top six types of RIs most
frequently reported, categorised by nature, were:
(Note that in many cases, a second report received would identify more
than one RI)
Unlawful Act or
Ommission
Reporting
Frequency
Regulator(s)
Informed
• Financial statements
not prepared/not
approved within the
alloted timeframe.
45%
South African
Revenue Services
(SARS); Financial
Service Board (FSB);
Companies and
Intellectual Property
Commission (CIPC);
etc.
• Tax-related
contraventions (e.g.
non-submission of
tax returns, failure to
register for tax, non-
payment of PAYE,
etc.).
27%
SARS.
• VAT related
contraventions.
7%
SARS.
• Contraventions of
the Estate Agencies
Affairs Act.
6%
The Estate Agencies
Affairs Board (EAAB).