The legal regulation of the external company auditor in Post-Enron South Africa

Drake, Hannine (2009-03)

Thesis (LLM (Mercantile Law))--University of Stellenbosch, 2009.

Thesis

The worldwide increase of corporate failures on the scale of Enron and WorldCom has sparked a renewed international trend of corporate governance review. With the external company auditor blamed at least in part for many corporate failures, corporate governance reform also necessitates a review of the statutory regulation of the company auditor. In particular, the lack of auditor independence when auditing clients has been under the legislator’s spotlight. The problems associated with unregulated or poorly regulated auditors are well illustrated by the activities of auditing giant Arthur Andersen. In the US, the Sarbanes-Oxley Act has been promulgated in reaction to corporate failures, imposing many new legislative restrictions on the auditor. The UK has a more tempered, selfregulatory approach. South Africa, following international trends with its recently promulgated Auditing Profession Act and Corporate Laws Amendment Act, has also greatly increased the regulation of auditor independence. The question is now whether these new restrictions in the wake of corporate failures have been the right approach with which to prevent future failures and to provide adequate protection to shareholders. Although the general legislative increase in auditor awareness is welcomed, the efficacy of several provisions in South African legislation can be questioned. Widespread reform has taken place in the appointment and remuneration of the auditor, which now has to be independently determined by the audit committee. In particular, South Africa’s new regulation of non-audit services, and the lack of refined regulation on compulsory auditor rotation as well as the cross-employment of auditors by clients, needs a critical discussion. It is submitted that the discretion of a well-regulated audit committee, combined with increased disclosure and transparency, should be enough to regulate most of the key aspects of auditor independence. Care should be taken to not overlegislate in haste to reform. South Africa needs a flexible and customised approach in this regard.

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