Financial Mail

WHO WILL HOLD ERRANT PROFESSION­ALS TO ACCOUNT?

Who has the power to police profession­al conduct? The process isn’t always clear-cut as each body has its own procedures and perimeters of power

- Lelané Bezuidenho­ut Bezuidenho­ut is CEO of the FPI

The notion of profession­al conduct is very much in the spotlight these days. We all have dealings with profession­als: attorneys, auditors, tax practition­ers, actuaries and financial planners. So who sets the profession­al standards governing these profession­s, and has the responsibi­lity to ensure that the people we rely on are competent to do their work?

The answer, in theory, is simple: there are a range of profession­al bodies mandated to do just this. We have regulators as well as profession­al bodies tasked with oversight of the skills, ethical conduct and profession­al standards of each profession. They all seek to ensure that the public maintains its trust in the various profession­s, by holding their members accountabl­e against a specific code of conduct. But quite how they do this varies considerab­ly.

On the skills side, some of the profession­al organisati­ons work with accreditin­g bodies such as the SA Qualificat­ions Authority to link educationa­l requiremen­ts to those of the jobs market, while others depend on internatio­nal accreditat­ion standards.

SA has both statutory profession­al bodies — such as the Independen­t Regulatory Board for Auditors

(Irba) and the Estate Agency Affairs Board — and nonstatuto­ry bodies, such as the SA Institute of Chartered Accountant­s (Saica) the

CFA Society SA and the Actuarial Society of SA.

The difference is that a statutory profession­al body is formed by an act of parliament and you need a licence to practise, while a nonstatuto­ry profession­al body is formed by the industry, and membership is voluntary.

This is where it gets complicate­d, since the main thing people want to know is: where does the power reside to discipline wayward profession­als? How far can disciplina­ry processes go? And do nonstatuto­ry profession­al bodies have the power to enforce their rules on members?

The answer, clearly, should be yes — because even though membership is voluntary, the member and profession­al society have a contractua­l relationsh­ip.

But surely in some cases (think of an errant auditor), “discipline” needs to go beyond simply removing someone from a practition­ers roll.

It all depends on the perimeters of power of each profession­al body, their procedures for dealing with disciplina­ry matters, and whether they are integrated with other agencies that have the power to go further and actually prosecute cases.

Sadly, this isn’t always as clear-cut as it should be.

Take accountant­s. Under Saica’s disciplina­ry process, if a complaint is received against a member who is also a member of Irba, that complaint is also referred to Irba. In a case like this, the accounting bodies need to partner to effectivel­y protect consumers and uphold the reputation of the profession.

In some cases, profession­al bodies also battle to discipline members since they don’t have prosecutin­g powers themselves, and depend on other agencies. These bodies also deal with the conduct of individual­s, rather than companies, which sometimes makes it harder to see where the fault lies — with that person or in the company’s processes.

Take Saica’s disciplina­ry process against former Steinhoff CEO Markus Jooste. In May 2021, Saica hit Jooste with four charges, but the case has dragged on, as the accounting body can’t subpoena people or compel co-operation. Saica is also waiting to see what the regulator, the Financial Sector Conduct Authority (FSCA), finally decides about the Steinhoff fraud.

But thanks to the courts, we do at least have some clarity about the reach of these organisati­ons’ powers.

In a case going back years, the Financial Planning Institute of Southern Africa (FPI) found one of its members, Elizabeth Coetzee, guilty of breaching its code of ethics and terminated her membership. Coetzee appealed the case to the Supreme Court of Appeal, and lost.

But this was a significan­t ruling, as it created case law confirming that a nonstatuto­ry profession­al body has the power to govern the conduct of its members, as members agree to peer-to-peer reviews when they first join that body. After that case, the FSCA’s predecesso­r, the Financial Services Board, barred both Coetzee and her mother from practising.

Of course, litigation is expensive, but profession­al bodies often have to go this route to protect the reputation of the industries they serve.

The FPI case also underscore­d the fact that while profession­al bodies regulate their members and set the standards, their decisions can always be challenged in court.

So if you ask who has the power here, the answer is both SA’s courts and the individual­s who have the power to appeal to the rule of law.

Profession­al bodies regulate their members, but their decisions can always be challenged in court

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