| (1) | The investigating committee, referred to in section 20(2)(e) may, for the purposes of investigating alleged improper conduct, authorise one or more suitably qualified persons (herein referred to as ‘the authorised person’) to enter any premises— |
| (a) | with the prior consent of— |
| (i) | in the case of a private residence, the person apparently in control of the business reasonably believed to be conducted at the private residence, and the occupant of the private residence or the part of the private residence to be entered; or |
| (ii) | in the case of any other premises, the person apparently in control of the premises, after informing that person that— |
| (aa) | granting consent will enable the authorised person to enter the premises and for the authorised person to subsequently search the premises and to do anything contemplated in subsection (7); and |
| (bb) | he or she is under no obligation to admit the authorised person in the absence of a warrant; or |
| (b) | without prior consent and without prior notice to any person if the entry is authorised by a warrant. |
(2)
| (a) | The chairperson of the investigating committee must issue the authorised person with a certificate in the prescribed form stating that the person has been authorised in terms of subsection (1). |
| (b) | When exercising powers in terms of this section, the authorised person must— |
| (i) | be in possession of a certificate of appointment; and |
| (ii) | immediately show that certificate to any person who is affected by the authorised person’s actions in terms of this section or who requests to see the certificate. |
| (3) | The authorised person has the authority to search the premises and to |
do anything contemplated in subsection (7).
| (4) | The authorised person exercising powers in terms of this section must do so with strict regard to— |
| (a) | an affected person’s right to— |
| (ii) | freedom and security; |
| (iv) | other constitutional rights; and |
| (b) | decency and good order as the circumstances require, in particular by— |
| (i) | entering and searching only such areas or objects as are reasonably required for the purposes of the investigation; |
| (ii) | conducting the search discreetly and with due decorum; |
| (iii) | causing as little disturbance as possible; and |
| (iv) | concluding the search as soon as possible. |
| (5) | An entry or search of premises in terms of this section must be done, at a reasonable time within ordinary business hours— |
| (a) | unless the warrant authorising it expressly authorises entry at night; or |
| (b) | in the case of a search contemplated in subsection (1)(a)(ii), if the authorised person on reasonable grounds believes that the purpose for which the entry and search is sought, is likely to be defeated by a delay, as close to ordinary business hours as the circumstances reasonably permit. |
| (6) | The authorised person may be accompanied and assisted during the entry and search of any premises for an investigation by a member of the investigating committee or an employee of the Regulatory Board. |
(7)
| (a) | While on the premises in terms of this section, the authorised person has access to any part of the premises and to any document or item on the premises, and may do any of the following: |
| (i) | Open or cause to be opened any strongroom, safe, cabinet or other container in which the authorised person reasonably suspects there is a document or item that may afford evidence of the alleged improper conduct; |
| (ii) | examine, make extracts from and copy any document on the premises; |
| (iii) | question any person on the premises to find out information relevant to the investigation; |
| (iv) | require a person on the premises to produce to the authorised person any document or item that is relevant to the investigation and is in the possession or under the control of the person; |
| (v) | require a person on the premises to operate any computer or similar system on or available through the premises to— |
| (aa) | search any information in or available through that system; and |
| (bb) | produce a record of that information in any media that the authorised person reasonably requires; |
| (vi) | if it is not practicable or appropriate to make a requirement in terms of subparagraph (v), operate any computer or similar system on or available through the premises for a purpose set out in that subparagraph; and |
| (vii) | take possession of, and take from the premises, a document or item that may afford evidence of the contravention concerned or be relevant to the request. |
| (b) | The authorised person must, on request, allow the person apparently in charge of the premises a reasonable opportunity to make copies of any document or item before it is taken as mentioned in paragraph (a)(vii). |
| (c) | The authorised person must give the person apparently in charge of the premises a written receipt for documents or items taken as mentioned in paragraph (a)(vii). |
| (d) | Subject to paragraph (e), the chairperson of the investigating committee must ensure that any document or item taken by the authorised person as mentioned in paragraph (a)(vii) is returned to the person when— |
| (i) | retention of the document or item is no longer necessary to achieve the object of the investigation; or |
| (ii) | all proceedings arising out the investigation have been finally disposed of. |
| (e) | A document or item need not be returned to the person who produced it if it is not in the best interest of the public or any member or members of the public for the documents or items to be returned. |
| (f) | A person from whose premises a document or item was taken as mentioned in paragraph (a)(vii), or its authorised representative, may, during normal office hours and under the supervision of the chairperson of the investigating committee, examine, copy and make extracts from the document or item. |
| (8) | The authorised person or any person assisting that person as provided for in subsection (6), may use reasonable force to exercise any power in terms of this section. |
| (9) | The law relating to privilege, as applicable to a witness subpoenaed to provide a book, document or object in a civil trial before a court applies, with the necessary changes, in relation to the production of any information, including but not limited to any working papers, statements, correspondence, books or other documents, to the investigating committee acting in accordance with this section. |
(10)
| (a) | A person who is questioned, or required to produce a document or information during an investigation in terms of this section, may object to answering the question or to producing the document or the information on the grounds that the answer, the contents of the document or the information may tend to incriminate the person. |
| (b) | The authorised person must inform the person of the right to object in terms of this section at the commencement of the investigation. |
| (c) | On such an objection, the authorised person may require the question to be answered or the document or information to be produced, in which case the person must answer the question or produce the document. |
| (d) | An answer given or a document or information produced, as required in terms of paragraph (c), may be used for the purposes of an investigation or disciplinary process by the investigating committee or the disciplinary committee in terms of this Act. |
| (e) | An incriminating answer given, and an incriminating document or information produced, as required in terms of paragraph (c), is not admissible as evidence against the person in any criminal proceedings, except in criminal proceedings for perjury or in which that person is tried for a contravention of section 53 based on the false or misleading nature of the answer. |
[Section 48A inserted by section 16 of the Auditing Profession Amendment Act, 2021 (Act No. 5 of 2021), Notice No. 228 of GG44493, dated 26 April 2021]
