In this Code:
"Appointment/s," means appointments held by Practitioners as trustees, liquidators, or receivers for creditors in Estates, including all other appointments of a fiduciary representative nature held in estates or appointments held by Practitioners who practice as BRP's;
"Association" means the South African Restructuring And Insolvency Practitioners Association Of South Africa;
"BRP's" means Business Rescue Practitioners duly appointed in terms of Section 138 of the Companies Act, 71 of 2008 prescribing to standards and procedures to be followed by CIPC;
"CIPC" means the Companies and Intellectual Property Commission established by Section 185 of the Companies Act;
"Code" means this code of professional conduct and ethics;
"Companies Act" means the Companies Act, 71 of 2008;
"Council" means the Board of Directors of the association as elected and appointed from time to time by members;
"Estate" means any person, company, close corporation, partnership, trust or other body or entity sequestrated, liquidated, under business rescue or placed under receivership or under curatorship in terms of an Order of Court;
"Master" means as defined in section 2 of the Administration of Estates Act 66 of 1965 including the Master of any Division of the High Court of South Africa;
"MOI" means the Association's Memorandum of Incorporation, as amended from time to time, that sets out rights, duties and responsibilities in relation to the Association as contemplated in terms of the Companies Act;
"Practitioners" means all duly admitted members of the Association;
"Services" means all services and work rendered and performed by Practitioners in the exercise of their duties and functions in their capacities as BRP's, trustees, liquidators, curators, receivers for creditors or in any other fiduciary or representative capacity in respect of any Estate and the administration and winding-up of such Estate generally.
"Old Act" means the Companies Act 61 of 1973.
"Insolvency Act" means the Insolvency Act 24 of 1936.
Practitioners must at all times render and perform their Services and conduct themselves in a professional, competent, proper, honourable and impartial manner and with the highest degree of integrity, objectivity and independence.
Practitioners must be honest, truthful and conscientious in the performance of their Services and must avoid all relationships and direct or indirect interests that will adversely influence, impair, or threaten their integrity or in any manner create the impression of doing so.
Practitioners must render and perform their Services free from any improper influence or pressure and in an impartial and independent manner:
in the best interests of the general bodies of creditors of Estates and affected persons as defined in the Companies Act; and/or
in compliance with the general powers and duties of BRP's provided for in Section 140 of the Companies Act, and/or
in compliance with the general powers and duties of a liquidator as provided for in the Old Act, and/or
in compliance with the general powers and duties as set out in the Insolvency Act.
Practitioners must render, perform and maintain their Services;
with such a degree of skill, care and attention, efficiency and professional competence; and
of such a quality and standard considered to be necessary;
in the opinion of the Council, the Master or CIPC insofar as it relates to BRP's...
Practitioners must conduct themselves:
with the necessary courtesy and consideration;
towards all with whom they come into contact in the performance of their Services and shall not in their conduct and performance of the Services deny equal services to any person for reasons of race, creed, sex, or country of origin.
owe a fiduciary responsibility to creditors and affected persons and generally all parties involved;
have a duty to be fair and act without bias in assessing the competing interests of stakeholders.
Practitioners may not accept any Appointment -
if they are disqualified from doing so in terms of the provisions of Section 55 of the Insolvency Act and Section 372 of the Old Act or for any other legal reason;
if they will be unable to render and perform their Services in respect of any such Estate impartially or independently by reason of relationships or direct or indirect interests or for whatever other reasons. Practitioners may not by means of any misrepresentation or reward or offer of any reward, whether direct or indirect, induce or attempt to induce any person to vote for their appointment.
Practitioners may not, in order to induce a creditor to vote for them in respect of appointments or in consideration for such vote, or in order to exercise any influence upon their Appointments -
wrongfully omit or include or be privy to the wrongful omission or inclusion of the name of a creditor from any record required under Insolvency Law or any other applicable law; or
directly or indirectly give or offer or agree to give any person any consideration; or
offer to agree with any person to abstain from investigating any transactions involving the Estate concerned; or
be guilty of or privy to the splitting of claims for the purposes of increasing the number of votes in their favour.
Practitioners may not enter into an agreement with any debtor or creditor whereby Practitioners undertake that they will, in the performance of their Services, grant or endeavour to grant to, or obtain or endeavour to obtain for any debtor or creditor any benefit or advantage not provided by law.
Practitioners may not accept or express their willingness to accept from any auctioneer, agent or any person engaged to render any services for or in connection with any Estate, any share of the commission or remuneration of such auctioneer, agent or person or any other benefits save in the case of an appointment as BRP where an agreement as is provided for in terms of section 143 of the Companies Act has been adopted as part of an adopted Business Rescue Plan as contemplated in terms of the Companies Act and BRP's are entitled to claim remuneration and disbursements, in respect of necessary work, properly performed. A claim by a BRP for remuneration must provide sufficient, meaningful, open and clear disclosure so as to allow the Council to make an informed decision as to whether the proposed remuneration is reasonable.
Practitioners shall not, in the performance of any aspect of their Services:
knowingly employ, except with the consent of the Council -
any person who has been convicted of a crime involving fraud or theft or who has been convicted of any other crime which in the opinion of the Council renders such person unfit from taking appointment; or
any person while such person is suspended from taking appointments by the Court, the Council or the Master; or
any person not registered as a member whom the Council has refused to register by virtue of the provisions of part D of schedule 1; or
any person whose membership has been cancelled by virtue of the provisions of the MOI; or
any person who in the opinion of the Council, is not a fit and proper person to be employed by a Practitioner;
except with the prior written approval of and on conditions stipulated by the Council, engage any person in the performance of their Services during any period in respect of which such person has been suspended from insolvency practice by the Master or suspended as a member of the association;
without lawful excuse fail to make or delay payment of monies to other parties within a reasonable time from the date that such monies become due and payable;
contravene any applicable statute, law or regulation;
make a donation, contribution or payment in any form which constitutes a bribe or sharing of remuneration, whether by way of formal presentation or otherwise, to a public official or public officer, other than at the request of or through the medium or under the authority of the Council;
without the Master's prior written permission transfer any surplus funds after the finalisation of the winding-up of an Estate into any other account, including their own accounts;
obtain or accept, in an irregular manner and without appropriate approval, from any person in a position of trust any confidential information for the purpose of or which will assist them in obtaining an Appointment;
wilfully or negligently, in the performance of their Services, prepare, make or assist any other person to prepare or make, any verbal or written false statement, or knowingly or recklessly prepare or maintain any false books of account or other records;
claim to be an expert or to have specialised knowledge in respect of insolvency or business rescue or the performance of their services if in fact they are not such an expert or do not have such special knowledge;
without good and sufficient cause, directly or indirectly in any manner whatsoever, solicit, encourage, persuade or influence any person to utilise or refrain from utilising the services of any particular accountant, attorney, financial institution, agent , practitioner or auctioneer;
without just cause, publish or divulge to any person any confidential information or details concerning the business, affairs, trade secrets, patents, technical methods or processes of any Estate in respect of which they hold Appointment.
keep proper books of account and records in respect of all the financial transactions relating to their services;
give proper and efficient attention to their Services;
adequately and continuously supervise and control their employees, representatives, Auctioneers or agents;
within a reasonable time answer or appropriately respond to and deal with any correspondence or other communications which reasonably require a reply or any other response in a manner that is accurate, honest, open, clear and succinct;
comply with all orders, requirements and requests of the Council;
comply, within a reasonable time, with all orders of Court and all lawful orders, rulings, requirements, directions and requests issued or made by the Master or any other lawful authority;
comply with the provisions of the MOI;
investigate and examine the affairs and transactions of each Estate up to the date of sequestration or liquidation or the affairs of any company or close corporation under business rescue as provided for in terms of the companies Act and whenever legally possible, and provided funding is available, set aside all impeachable transactions (as per sections 26 ,27 ,29 ,30 and 31 of the Insolvency act ) involving any Estate and shall pursue their statutory investigatory and reporting obligations even though the costs of investigation and reporting will reduce the funds available to creditors and other affected persons;
if they conduct their business under a company, close corporation, partnership or style other than in their own name, clearly disclose their names in all correspondence, circulars and other written documentation used in the performance of their Services; and;
in the performance of their Services and the administration of Estates in respect of which joint Appointments are held immediately report all of the following to the Council and the Master -
irregularities or corrupt practices;
conflicts of interest;
conduct by any joint appointee which will detrimentally affect or prejudice the Estates or the creditors of the Estates.
When promoting themselves or when competing for work, Practitioners must act with integrity and must not bring the Association into disrepute.
Practitioners or their partners, fellow directors, employees or spouses of Practitioners may not in any manner acquire any asset of Estates in respect of which they hold Appointments unless such acquisition is approved by the High Court.
If they are the sole proprietor of a business, or a partner of a partnership or a director of a company or a member of a close corporation, Practitioners are responsible for any contravention of or failure to comply with this Code by any other partner, director or member or by any Practitioner or employee in the service of such sole proprietorship, partnership, company or close corporation, unless they have, in the opinion of the Council or the Master, prior to such contravention or failure to comply taken all reasonable steps to prevent the same and could not in the circumstances have prevented such contravention or failure to comply.
Practitioners must at all times conduct themselves in the manner which will promote co-operation and good relations and must not in the performance of their Services do or omit to do any act which will or may, generally or otherwise, damage or in any manner adversely affect the good name, standing or integrity of Practitioners, the Council, the Association or the Master.
Any Practitioner who contravenes this Code shall be guilty of improper, unworthy or disgraceful conduct and shall be subject to discipline according to the provisions of the MOI.
Any matter under consideration by Council before the registration of the MOI and the publication of this updated code will not be affected by this code.