LEGAL c o n t .
Accordingly, the Committee ordered that implementation of
the sanction and costs order against the First Respondent be
postponed until such time as she is re-registered with the
Regulatory Board, and that the payment of the fines and costs
be a condition of such re-registration.
Finally, the Committee ordered that the Respondents' names,
the firm name of the Second Respondent be published in IRBA
News with a fair summary of the charges, convictions and
sanctions, as well as the facts giving rise thereto.
The IRBA was informed of the successful prosecution of one
E.S. Mzileni by the CCU in Durban, for contravening section
41 of the APA. He is a member of the (accounting) firm
Corporate Advantage, and a member of the Institute of
Accounting and Commerce. The matter was referred to us by
the Bargaining Council for the Contract Cleaning Services
HOLDINGOUTS
Industry who was under the impression that he (or his firm)
was a registered auditor. He pleaded guilty to the charges and
was fined R3 000 or one year's imprisonment. (Maximumum
competent sentence is a fine (quantum not stipulated) or five
years' imprisonment, or both). The IRBA has not had sight of
the charge sheet.
The IRBA is often approached by RAs who have been served
with subpoenas, for guidance as to what exactly they are
obliged to supply, and how to respond.
In order to assist RAs, we briefed a law firm to provide a
memorandum to assist RAs in this regard. Their memorandum
follows. We hope this will be of general assistance to RAs but it
does not exonerate RAs fromapplying their ownminds to each
and every such request. Nor does it bind the IRBA. It is
provided in an attempt to be of assistance to our RAs.
SUBPOENAS
Brief
We have been instructed to provide a concise memorandum
regarding an auditor's obligations upon receipt of a subpoena
in civil proceedings. In giving effect to the aforementioned, we
have been asked to specifically address the following
questions:
(a) What is a subpoena?
(b) What is the impact of a subpoena?
(c) What are the consequences of failing to respond to a
subpoena?
(d) Are there any exceptions to the obligations to comply with
a subpoena?
What is a subpoena?
A subpoena is a written order of court that compels testimony
by a witness or production of evidence under a penalty for
failure. A subpoena informs a witness when and where to
appear and/or what documents to present to the court.
A subpoena gives a party that desires the attendance of a
witness, to give evidence or to produce a document or thing at
a trial, the power to sue out from the office of the registrar
subpoenas in accordance with the rules of court.
There are two types of subpoenas, namely:
(a) A
subpoena ad testificadum
- an order compelling a
person to testify before the court or face punishment; and
(b) A
subpoena duces tecum
- an order compelling a person
to bring physical evidence before the court or face
punishment.
The power to permit the issue of a subpoena is derived from
section 51 of the Magistrates' Court Act 32 of 1994, as
amended (the "Magistrates Court Act") read with rule 26 and
form 24 of the Rules Regulating The Conduct of the
Proceedings of the Magistrates' Courts of South Africa (the
"Magistrates Court Rules") and section 35 of the Superior
CourtsAct 10 of 2013 (the "Superior CourtsAct") read with rule
38 and form 16 of the Rules Regulating the Conduct of the
Proceedings of the Several Provincial and Local Divisions of
the Supreme Court of SouthAfrica (the "UniformRules").
What is the impact of a subpoena?
If a person is timeously served with a valid subpoena that has
been correctly issued, they are obliged to comply with the
provisions set out therein. Compliance may entail presenting
oneself in court to provide
viva voce
(oral) evidence or handing
over a document or thing to the registrar as soon as possible
after service – unless lawful objection can be raised.
As more fully detailed below, the effect of a subpoena is similar
to that of an order of court in so far as non-compliance with a
subpoenamay result in a fine or imprisonment.
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Issue 29 March - April 2015
