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Companies Act, 2008 (Act No. 71 of 2008)

Notices

Business Rescue Continuing Professional Development Policy

6. Background

 

6.1 Section 138 of the Companies Act No. 71 of 2008 (as amended) ("Act") provides for the qualifications of Business Rescue Practitioners (BRP).

 

6.2 Regulation 126(1) read in conjunction with Section 138(1):

 

The Commission must, when considering an application for accreditation of a profession under section 138(1), have due regard to the qualifications and experience that are set as conditions for membership of any such professional body, and the ability of such professional body to discipline its members and the Commission may revoke any such accreditation if it has reasonable grounds to believe that the professional body is no longer able to properly monitor or discipline its members.

 

6.3 For the purpose of this application. Section 128(1)(d) of the Act defines "business rescue practitioner" as a person appointed, or two or more persons appointed jointly, in terms of Chapter 6 of the Act to oversee a company during business rescue proceedings and "practitioner" has a corresponding meaning.

 

6.4 Section 138(1) provides that a person may be appointed as the business rescue practitioner of a company only if the person—
(a) is a member in good standing of a legal, accounting or business management profession accredited by the Commission;
(b) has been licensed as such by the Commission in terms of subsection (2);
(c) is not subject to an order of probation in terms of section 162(7);
(d) would not be disqualified from acting as a director of the company in terms of section 69(8);
(e) does not have any other relationship with the company such as would lead a reasonable and informed third party to conclude that the integrity, impartiality or objectivity of that person is compromised by that relationship; and
(f) is not related to a person who has a relationship contemplated in paragraph (d).

 

6.5 In addition to the accreditation of the professional bodies, the Commission may issue Conditional Licenses to any qualified person to practice in terms of Chapter 6 of the Act and may suspend or withdraw any such license in the prescribed manner.

 

6.6 As per the APPLICATION FOR THE ACCREDITATION OF PROFESSIONAL BODIES FOR BUSINESS RESCUE PRACTITIONERS section 4 deals with the Applicability of the Applicant to conduct its activities effectively and the CIPC requires the following from the applicant, which is the relevant professional bodies:
4 THE ABILITY OF THE APPLICANT TO CONDUCT ITS ACTIVITIES EFFECTIVELY:
4.2 Every professional body accredited by the Commission whose members are entitled to oversee an entity during business rescue proceedings must demonstrate that:
4.2.1 It has proper mechanisms for ensuring that its members participate in continued professional development and achievement of professional competence;
4.2.2 It has mechanisms to ensure that its members are disciplined where appropriate;
4.2.3 It is, and is likely to continue to be, financially and operationally viable for the foreseen future;
4.2.4 It keeps and maintains a proper register of its members;
4.2.5 It has in place appropriate programmes and structures to ensure that it is actively endeavouring to achieve the objective of being representative of all sectors of the South African population; and
4.2.6 It meets any other requirements that may be determined by the Commission from time to time.

 

As per 4.2.6 of the accreditation process the Commission has decided to set out a specific CPD requirement for BRP's to be monitored and reported to by the professional bodies.

 

CPD is a continuation of initial professional development that is the learning and development through which individuals develop the competencies that enable them to perform the role and function for a BRP and is the learning and development that take place after completion of an initial qualification which allows the individual to become a member of the various accredited professional bodies. To continue to be registered and perform the services of a BRP the individual must develop and maintain the competencies, skills and knowledge to act as a BRP.

 

The BRLC has agreed to an input-based approach which establishes a minimum set of learning activities by means of which individuals can develop and maintain competence.

 

In view of the above, the BRLC has developed this CPD policy to assist—

(a) Accredited professional bodies to fulfil its obligations in terms of the accreditation process
(b) Individual BRP's in meeting their obligations in terms of competence, skills and knowledge;
(c) Training providers to provide recognisable CPD activities.