REPORTING BY PUBLIC ENTITIES ACT 93 OF 1992 (Prior to repeal by Act 1 of 1999) [ASSENTED TO 18 JUNE 1992] [DATE OF COMMENCEMENT: 1 AUGUST 1992] (Afrikaans text signed by the State President) as amended by Reporting by Public Entities Amendment Act 30 of 1997 ACT To provide for reporting to Parliament by public entities; and to provide for matters connected therewith. 1 Definitions In this Act, unless the context otherwise indicates- 'auditor'... [Definition of 'auditor' deleted by s. 1 of Act 30 of 1997.] 'Auditor-General' means the person who in terms of item 20 (2) of Schedule 6 to the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), continues to hold office as Auditor-General or is appointed as such in terms of section 193 (4) of the Constitution; [Definition of 'Auditor-General' substituted by s. 1 of Act 30 of 1997.] 'board of directors', in relation to a listed entity, means- a board of directors of the entity appointed in terms of an Act of Parliament; or the persons who in practice fulfil the role of a board of directors of the entity; 'chief executive officer', in relation to a listed entity, means a person who, either alone or jointly with one or more persons, is responsible under the direct authority of the board of directors of the listed entity for the conduct of the business of the listed entity; 'listed entity' means a public entity whose name has been included in the list mentioned in section 3; 'material financial interest', in relation to a public entity, means an interest arising when- 50 per cent or more of the entity's expenditure is defrayed directly or indirectly from funds voted by Parliament; or the entity is or was dependent for 50 per cent or more of its total permanent capital needs, including share capital, loans or other forms of permanent capital, on funds voted by Parliament, and the State still holds a direct or indirect interest of 50 per cent or more in such permanent capital; or the entity supplies products or services that are related to the broad public interest under monopolistic rights conferred on it by an Act of Parliament;
(d) (e) (f) or the State has a financial interest and the majority of the entity's directors are appointed by the State; or the State creates the possibility through contingent liability that funds voted by Parliament will have to be used in future to defray 50 per cent or more of the entity's expenditure or to provide 50 per cent or more of the entity's permanent capital; or the State administers funds, assets or other property in an entity on a trust basis on behalf of the inhabitants of the Republic or of a particular interest group; 'Minister' means the Minister of Finance; [Definition of 'Minister' substituted by s. 1 of Act 30 of 1997.] 'prescribed' means prescribed by regulation; 'public entity' means an institution that operates a system of financial administration separate from the national, provincial, and local spheres of government and in which the State has a material financial interest; [Definition of 'public entity' substituted by s. 1 (d) of Act 30 of 1997.] 'regulation' means a regulation made under section 17; 'responsible Minister', in relation to a public entity, means the Minister or the member of the Executive Council of the province who administers the department of the national or provincial government under which that public entity falls, or, in the absence of such Minister or member of the Executive Council of the province, the Minister or the member of the Executive Council of that province designated by the President or the Premier of that province; [Definition of 'responsible Minister' substituted by s. 1 (e) of Act 30 of 1997.] 'this Act' includes the regulations. 2 Reporting to Parliament Every listed entity shall in accordance with the provisions of this Act report to Parliament on its activities and financial affairs. 3 List of public entities and application of Act (1) The Minister shall keep and maintain a list in which shall be included the names of public entities and which shall from time to time be reviewed according to circumstances. (2) Every public entity whose name has been included in the said list shall be notified thereof by the responsible Minister in writing, and every public entity so notified shall, notwithstanding the provisions of any other law, be subject to the provisions of this Act. 4 Carrying out of reporting The responsible Minister may, after consultation with the Minister, determine the roles of the persons involved in the internal and external reporting regarding listed
entities or certain categories of listed entities. 5 Accounting and related records The chief executive officer of every listed entity shall cause such accounting and related records, in the prescribed form, to be kept as are necessary to represent fairly the state of affairs and business of that entity and to explain its transactions and financial position. 6 Annual financial statements (1) The board of directors of every listed entity shall in respect of every financial year cause to be made out annual financial statements and shall submit copies of such statements, after such statements have been audited in terms of section 12, to the responsible Minister and the Auditor-General within six months after the end of the financial year concerned. (2) The annual financial statements mentioned in subsection (1) shall consist of- (d) a balance sheet dealing with the state of affairs of the public entity; an income statement; a cash-flow statement; notes to the financial statements; (e) a directors' report contemplated in section 7; (f) (g) group annual financial statements, where applicable, prepared in accordance with the relevant provisions of the Companies Act, 1973 (Act 61 of 1973); and such other statements as may be prescribed. (3) The annual financial statements mentioned in subsection (1) shall be accompanied by a report of the auditors as contemplated in section 12. (4) The annual financial statements mentioned in subsection (1) shall, in conformity with generally accepted accounting practice, fairly present the financial performance and changes in the financial position of the entity during the financial year concerned and the financial position of the entity at the end of the financial year concerned, and shall- for that purpose be in accordance with and include at least the matters prescribed by Schedule 4 to the Companies Act, 1973, in so far as they are applicable; and comply with such other reporting requirements as may be prescribed. [Sub-s. (4) substituted by s. 2 of Act 30 of 1997.] (5) The annual financial statements of a listed entity shall by means of figures and a descriptive report explain any other matters and information material to the affairs of the entity. (6) The responsible Minister shall lay the annual financial statements, prepared in the prescribed form, of a listed entity submitted to him in terms of subsection (1) upon the Table in Parliament within 14 days after receipt thereof, if Parliament is then
in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session. If the responsible Minister, with the concurrence of the Minister, is of the opinion that the disclosure of any statement or report contemplated in this section may jeopardize the security of the State or be contrary to the public interest, a summary, approved by the responsible Minister, of the statements contemplated in paragraph, shall be tabled in Parliament instead of the said statements. 7 Directors' report (1) Every listed entity shall, as part of its annual financial statements, submit to the responsible Minister a report by its board of directors with respect to the state of affairs, the business and the financial position of the entity and the degree in which its objects have been attained. (2) The directors' report shall deal with the matters prescribed in Schedule 4 of the Companies Act, 1973 (Act 61 of 1973), in so far as these are applicable. (3) The directors' report shall also- (d) 8 Internal audit set out the functions and objectives of the entity as determined by law or otherwise; state the extent to which the entity has achieved its predetermined objectives as approved by the board of directors concerned for the financial year concerned; [Para. substituted by s. 3 of Act 30 of 1997.] contain relevant performance information regarding the economic, efficient and effective application of resources; and indicate the amount of money, if any, received from the State and any other commitment furnished by the State. Every listed entity shall cause internal audits to be conducted so as to promote- the safeguarding and control of the assets of the entity; compliance with this Act or any other Act of Parliament governing the activities of the entity; and the economical and efficient management of the resources of the entity and the effective performance of the functions of the entity, unless the responsible Minister, on the recommendation of the board of directors, is of the opinion that the benefits to be derived from internal auditing do not justify the cost thereof. 9 Appointment of auditors (1) Where the external audit of a listed entity has not been entrusted to the Auditor-General, the responsible Minister shall, on the recommendation of the board of directors and with the concurrence of the Auditor-General, appoint the auditors of the entity annually.
(2) Auditors appointed in terms of subsection (1) of this section shall be persons registered in terms of section 15 of the Public Accountants' and Auditors' Act, 1991 (Act 80 of 1991), as accountants and auditors, and engaged in public practice as such. 10 Discharge of auditors (1) An auditor appointed in terms of section 9 (1) shall not be discharged before the expiry of his or her term of appointment except by the responsible Minister acting after consultation with the board of directors concerned and with the concurrence of the Auditor-General. [Sub-s. (1) substituted by s. 4 of Act 30 of 1997.] (2) The responsible Minister shall inform an auditor in writing that he intends to discharge him in accordance with subsection (1) before the expiry of his term of appointment, and such auditor may make written representations to the responsible Minister and the Auditor-General in connection with the intended discharge within 20 days of receipt of the notice. Should the responsible Minister give up or amend his said intention, the Auditor-General shall be informed accordingly. 11 Duties and powers of auditors (1) An auditor appointed in terms of section 9 (1) shall perform his or her duties in terms of the provisions of section 20 of the Public Accountants' and Auditors' Act, 1991 (Act 80 of 1991). [Sub-s. (1) substituted by s. 5 of Act 30 of 1997.] (2) In exercising his or her powers and performing his or her duties an auditor appointed in terms of section 9 (1) shall have- the right of access at all reasonable times to the accounting records and all books, vouchers, documents and other property of a listed entity whose accounts are being audited by him or her, and may require from the directors of that entity such information and explanations as he or she thinks necessary for the performance of his or her duties; and the right to investigate whether there are adequate measures and procedures for the proper application of sound economic, efficient and effective management. [Sub-s. (2) substituted by s. 5 of Act 30 of 1997.] (3) Auditors appointed in terms of section 9 (1) may consult the Auditor-General or persons appointed in his or her Office concerning any matter connected with the auditing of listed entities. [Sub-s. (3) substituted by s. 5 of Act 30 of 1997.] (4) An auditor of a listed entity shall receive notice of every meeting of the audit committee mentioned in section 14, and shall have the right to attend each meeting at the expense of the entity and to be heard at such meeting. (5) Subsection (2) shall not be construed as entitling the auditor concerned to question the merits of the policy objectives of the listed entity in respect of which an
audit is carried out. 12 Reports of auditors [Sub-s. (5) substituted by s. 5 of Act 30 of 1997.] (1) An auditor's report on the annual financial statements shall be prepared in respect of every listed entity by the auditors appointed in terms of section 9 (1). (2) A report in terms of subsection (1) shall be addressed to the responsible Minister and shall state separately in respect of each of the following matters whether in the auditor's opinion- (d) the annual financial statements fairly present the financial position and the results obtained by the entity in accordance with generally accepted accounting practice applied on a basis consistent with that of the preceding year; the information furnished in terms of sections 6 and 7 is fair in all material respects and, if applicable, on a basis consistent with that of the preceding year; the transactions of the entity that had come to the auditor's notice in the course of his examination were made in accordance with the applicable laws and instructions; and the transactions that had come to his attention during auditing were in all material respects in accordance with the mandatory functions of the entity determined by law or otherwise. (3) The auditor concerned shall report to the responsible Minister the results of any investigation carried out under section 11 (2). [Sub-s. (3) substituted by s. 6 of Act 30 of 1997.] (4) The auditor concrened shall, when reporting in terms of subsection (1) or (3), draw attention to any other matters falling within the scope of the auditor's examination which, in his or her opinion, should in the public interest be brought to the notice of Parliament. [Sub-s. (4) substituted by s. 6 of Act 30 of 1997.] (5) The person appointed in terms of section 13 (3B) shall report to the Auditor-General the results of any investigation and audit carried out in terms of section 13 (3A). [Sub-s. (5) added by s. 6 of Act 30 of 1997.] 13 Duties and powers of Auditor-General (1) The Auditor-General may, after consultation with the auditor of a listed entity, transmit a report on any matter mentioned in a report by that auditor to the responsible Minister. (2) The Auditor-General may consult with auditors of listed entities in connection with the performance of audits of listed entities and may make proposals to them in the interest of effective reporting.
(3) Notwithstanding the provisions of any other law, the Auditor-General may, after consultation with the board of directors of a listed entity, at any time, if he deems it desirable, transmit a special report on any matter relating to this Act to the responsible Minister. (3A) The Auditor-General may, when he or she considers it to be in the public interest or upon receipt of a complaint- require from the board of directors of a listed entity documents, information and explanations with regard to the affairs of the entity; require documents, information and explanations with regard to the affairs of a listed entity from the auditor of the entity without the auditor being obliged to obtain the approval of the board of directors and chief executive officer of the entity therefor; investigate and audit a listed entity at the cost of the entity. [Sub-s. (3A) inserted by s. 7 of Act 30 of 1997.] (3B) An investigation and audit contemplated in subsection (3A) shall be carried out by the Auditor-General or a person appointed by the Auditor-General. The person so appointed shall accept such appointment and be registered in terms of section 15 of the Public Accountants' and Auditors' Act, 1991 (Act 80 of 1991), as an accountant and auditor. Notwithstanding any other law to the contrary, an auditor of a listed entity shall, when so required, supply documents, information and explanations under subsection (3A). [Sub-s. (3B) inserted by s. 7 of Act 30 of 1997.] (4) The responsible Minister shall lay the reports mentioned in subsections (1) and (3) upon the Table in Parliament within 14 days after receipt thereof by him if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session. (5) The Auditor-General shall include in a report, submitted at least annually to Parliament, all representations received in regard to the discharge of auditors under section 10. 14 Audit committees [Sub-s. (5) substituted by s. 7 of Act 30 of 1997.] (1) Each listed entity shall establish an audit committee consisting of not less than three persons appointed by its board of directors: Provided that the majority of the members of that committee shall be non-executive members of the board of directors or other non-executive persons. (2) The duties and powers of an audit committee are as prescribed. 15 Exemption from provisions of Act (1) Any public entity or a category of public entities may in the prescribed form make representations to the responsible Minister to be exempted from all or any of the provisions of this Act.
(2) The Minister may, subject to such conditions as he may determine, on the recommendation of the responsible Minister exempt in writing any listed entity from compliance with any provision of this Act, if in the opinion of the Minister it is in the public interest. (3) A recommendation contemplated in subsection (2) shall be accompanied by a report by the Auditor-General expressing his opinion on the desirability of such an exemption. (4) The Minister shall lay upon the Table in Parliament annually a list of exemptions granted under this section. (5) The provisions of this Act shall not apply to a public entity which is permanently provided, directly or indirectly, with funds out of an account mentioned in section 4 (6) of the Auditor-General Act, 1995 (Act 12 of 1995). 16 Delegation of powers [Sub-s. (5) substituted by s. 8 of Act 30 of 1997.] (1) The Minister may in writing and on such conditions as he may deem fit, delegate to the Director-General: State Expenditure or an officer in his department any of or all the powers conferred upon him under this Act, save the power to make regulations. (2) A responsible Minister may in writing and with the concurrence of the Minister delegate to the Director-General of any national department or the relevant provincial administration, as the case may be, or an officer in such department or administration any of or all the powers conferred upon him or her under this Act. [Sub-s. (2) substituted by s. 9 of Act 30 of 1997.] (3) The Minister and a responsible Minister may at any time in writing revoke such a delegation, and the delegation of any power shall not prevent the exercise of that power by the Minister or responsible Minister concerned, as the case may be, himself. 17 Regulations (1) The Minister may make regulations in regard to any matter which he considers it necessary to prescribe in order to give effect to the objects of this Act, including regulations as to any matter which in terms of this Act is required or permitted to be prescribed by regulation. (2) Different regulations may under subsection (1) be made in respect of different categories of listed entities. 18 Short title and commencement (1) This Act shall be called the Reporting by Public Entities Act, 1992, and its provisions shall come into operation on a date fixed by the State President by proclamation in the Gazette. (2) Different dates may be fixed under subsection (1) in respect of different provisions of this Act.