IIEffective Insolvency and Creditor Rights Systems
A review of the publications on the insolvency and creditors' rights system in South Africa reveals that, overall, the legal framework for corporate insolvency in South Africa is fragmented and inconsistent, and the provisions of different laws overlap each other. In its 2004 policy paper titled "South African Company Law for the 21st Century - Guidelines for Corporate Law Reform," the Department of Trade and Industry (DTI) acknowledged the need for reform of the insolvency laws. Specifically, the DTI called for clarification of the role of liquidators, the winding up process, and the powers of inquiry. To address deficiencies in the South African insolvency regime, the new Companies Act was approved by Parliament and was signed into law in April 2009 with an expected effective date of July 1, 2010. According to analysis put forth by Eric Levinstein in a legal brief by South African law firm Werksman, the Companies Act introduces a new business rescue scheme for companies in financial distress as an alternative to liquidation, which brings South Africa's insolvency regime in line with the U.S. Chapter 11 processes and the administrative procedures in the United Kingdom and Australia. Despite these developments, there is insufficient publicly available information regarding South Africa's compliance with the Principles and Guidelines for Effective Insolvency and Creditor Rights Systems developed by the World Bank.
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ENInternational Financial Reporting Standards
Since 1993, South Africa has been harmonizing its Statements of Generally Accepted Accounting Practice (GAAP) with international standards. In June 2004, the South African Institute of Chartered Accountants (SAICA) issued Circular 7/2004 announcing its decision to adopt the text of IFRSs without any amendments. The 2003 World Bank assessment of accounting and auditing practices in South Africa concluded that the lack of legal backing for accounting standards and inadequate enforcement mechanisms presented major challenges. Recognizing the need for reform, the South African authorities embarked upon a review of the Companies Law. The first stage of the reform was completed in April 2007 with the adoption of the Corporate Laws Amendment Act, legislating that widely held companies are legally required to use IFRSs, while limited-interested companies are to follow Statement of GAAP for Small and Medium-sized Entities (SMEs), which copy the exact text of the International Accounting Standards Board's Exposure Draft on IFRSs for SMEs. The second stage of reform ended with the passage of a new Companies Act, which on April 9, 2009 was signed into law with an expected of effective date of July 1, 2010. The law calls for the creation of a Financial Reporting Standards Council, which will be responsible for consulting with the Minister of Trade and Industry on the making of regulations establishing financial reporting standards. Chapter 2, Part C, Section 29.5(b) of this law states that regulations concerning financial reporting standards, "must be consistent with the International Financial Reporting Standards of the International Accounting Standards Board," while Section 29.5(c) allows for deviating standards in the regulations between profit and non-profit companies as well as varying categories within the for-profit sector. According to the SAICA website, the revised standards issued by the IASB as a result of the Improvements Projects are issued as improvements to Statements of GAAP once approved by the Accounting Practices Board.
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ENPrinciples of Corporate Governance
South Africa has made significant progress in its corporate governance reform since the mid-1990s. The breadth and sophistication of its practices and rules qualify them as some of the best among emerging market economies, according to assessments by both the World Bank and the Institute of International Finance (IIF). The New Partnership for Africa's Development states in a 2007 report that South Africa has adopted the Principles of Corporate Governance developed by the Organization for Economic Cooperation and Development. It also complimented South Africa for its promulgation of the King I and II Reports, which has strengthened the corporate governance framework. South Africa has been relying on a self-regulation corporate governance approach as evidenced by the comply-or-explain format of compliance with the King Code. However, according to the IIF assessment, the spirit of the disclosure required under a voluntary compliance environment has been embraced by only a few South African companies. In addition, enforcement has been fragmented between three different institutions, the Financial Services Board, the Department of Trade and Industry, and the Companies and Intellectual Properties Registration Office, creating a weak enforcement culture. A new Companies Act was signed into law in 2009 and will take effect on July 1, 2010. The Act is expected to enhance corporate governance and empower shareholders. It also codifies the standard for directors' conduct and holds directors accountable where the standard is not met. Also in 2009, the King Committee released the draft King III, which applies to all entities and takes an "apply or explain" approach. King III will take effect in March 2010 and replace King II.
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ENInternational Standards on Auditing
Under the Companies Act, public companies are obliged to be audited though regulations may be promulgated to require audits of other companies if it is in the public interest. Other companies may choose to be audited or may opt to have their financial statements independently reviewed. Per the Auditing Profession Act, Audits must be conducted in accordance with the auditing standards put forth by the Independent Regulatory Board for Auditors (IRBA), formerly the Public Accountants' and Auditors' Board (PAAB). As stated in Circular B.1/2004 issued by the PAAB, South African Auditing Standards (SAASs) have been based on the guiding principles of the International Standards on Auditing (ISAs) issued by the International Auditing and Assurance Standards Board (IAASB) of the International Federation of Accountants (IFAC). In June 2004, the Auditing and Assurance Standards Board (AASB) of the PAAB announced its decision to fully adopt the original text of ISAs. As a result, Circular B.1/2004 states that, effective January 1, 2005, the entire suite of pronouncements issued by the IAASB was adopted in South Africa. As indicated in the 2006 self-assessment prepared by the South African Institute of Chartered Accountants as part of the IFAC's Member Body Compliance Program, there will be no timing differences in the adoption of ISAs and no differences between ISAs and the national standards. According to the information available from the IRBA website, in May 2009 ISAs revised and redrafted as a result of the Clarity Project have been adopted for application in South Africa effective for periods commencing on or after December 15, 2009.
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IDAnti-Money Laundering/Combating Terrorist Financing Standard
An assessment of South Africa's anti-money laundering (AML) and combating the financing of terrorism (CFT) regime was undertaken by the Financial Action Task Force (FATF) and the Eastern and Southern Africa Anti-Money Laundering Group and a report of their findings was published in 2009. According to this report, South Africa is compliant or largely compliant with the criminalization of money laundering and terrorist financing and with the powers and functions of its financial intelligence unit, but the country is found deficient in its implementation of the FATF's recommendations on preventive measures for financial institutions and Designated non-Financial Business and Professions. For example, the country does not comply with many of the FATF's essential requirements on customer due diligence and record keeping. The FATF, in its 2007-2008 Annual Report, however, names South Africa as one of the jurisdictions that have undertaken to implement the FATF's 40+9 recommendations. The Proceeds of Crime Act of 1996 criminalized money laundering in South Africa for all serious crimes. This Act was supplemented by the Prevention of Organized Crime Act of 1998, which was amended in 1999. In November 2004, the South African Parliament passed the Protection of Constitutional Democracy against Terrorist and Related Activities Act which specifically criminalizes terrorist activity and terrorist financing. South Africa's law enforcement authorities, such as the Financial Intelligence Center (the South African Financial Intelligence Unit), have the power to investigative suspicious activities.
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CPCore Principles for Systemically Important Payment Systems
The International Monetary Fund (IMF) states in its 2008 Financial System Stability Assessment report that South Africa has in place a "robust and efficient interbank payments system," with the South African Multiple Option Settlement (SAMOS) at its core. A 2006 report by the Payment System Project Team of the Southern African Development Community (SADC) identifies the SAMOS as the systemically important payment system (SIPS) in South Africa, and the report concludes that SAMOS observes all but Core Principle IX of the Committee on Payment and Settlement Systems' Core Principles for Systemically Important Payment Systems (CPSIPS). The report further indicates that SAMOS broadly observes Principle IX. However, apart from this report, there is little other information publicly available to substantiate the SADC's compliance level for South Africa's SIPS. The SAMOS system, established in 1998 and owned and operated by the South African Reserve Bank (SARB), is a real time gross settlement (RTGS) system that settles both large-value and low-value interbank payments. South Africa's payment systems, payment instruments, and regulatory environment are collectively referred to as the National Payment System (NPS). The NPS is supervised and regulated by the National Payment System Department (NPSD) within the SARB, which is given ample power to ensure the safety and soundness of payment systems by the National Payment System Act. According to the SARB, one of the main objectives of the NPSD is to ensure the compliance of the NPS with the CPSIPS.
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