Is IRBA’s Disciplinary Process Fair?
A critical look at procedural fairness
By Jacobs & Potgieter Inc. 24 March 2026
“Professional discipline derives its legitimacy not from severity, but from fairness.”
The Core Issue
When Process Becomes Pressure
Professional discipline derives its legitimacy not from severity, but from fairness. A regulator entrusted with safeguarding the public interest must do more than act with good intentions. It must act within the limits of its statutory powers, in accordance with lawful procedure, and in a manner that is fair to those whose professional standing and livelihoods are at risk.
That proposition should be uncontroversial.
The Lessing Judgment
A Court Raises Concern
Yet the recent judgment in Lessing v Independent Regulatory Board of Auditors and Another (2024/021979) [2025] ZAGPJHC 1065 suggests that it cannot be taken for granted. On the facts before it, the High Court set aside the decisions of both IRBA’s Investigating Committee and its Enforcement Committee. More strikingly, the court described the auditor as having been “browbeaten and given Hobson’s choice”. That is not the language of a technical procedural defect. It is the language of a court concerned that the process itself had become coercive in effect.
The importance of Lessing lies not simply in the fact that IRBA lost. Regulators lose cases from time to time. Its importance lies in what the judgment reveals about the relationship between statutory form and practical reality.
Procedural Safeguards vs Reality
Where Structure Meets Reality
The Auditing Profession Act 26 of 2005 contemplates a sequence: investigation, decision to charge, plea, consideration of mitigation, and only then sanction. Those stages are not ornamental. They are procedural safeguards. They are how fairness is made real in disciplinary proceedings. If sanction is introduced too early, before the process has properly unfolded, the distinction between investigation and adjudication starts to collapse. What ought to be an impartial process begins to look like a managed outcome.
The Bigger Legal Principle
The Purpose of Professional Discipline
This is not merely an administrative-law point. It goes to the normative foundation of professional discipline itself. In General Council of the Bar of South Africa v Geach and Others 2013 (2) SA 52 (SCA), the Supreme Court of Appeal reaffirmed that professional disciplinary power exists to protect the standing and integrity of the profession and, through that, the public. Discipline is therefore not an end in itself. It is justified because it is exercised in service of public confidence and professional integrity. That principle carries with it an obvious corollary: a regulator charged with enforcing standards must itself adhere scrupulously to standards of fairness and legality.
Practical Burden on Professionals
The Cost of Resistance
Seen in that light, Lessing is troubling. If the investigating structure effectively signals the sanction it has in mind before the regulated person has traversed plea and mitigation, the process risks creating an incentive to concede, not because guilt is plain, but because resistance becomes progressively more expensive and uncertain. That is particularly acute in audit regulation, where matters are document-heavy, technically specialised, and reputationally sensitive. One need not allege bad faith to recognise the risk. It is enough to recognise institutional asymmetry.
The practical burden of resisting an IRBA complaint is not speculative. The African Bank disciplinary matter against Mr Jordan and Mr Crowther makes the point vividly. In that hearing the merits hearing ran over 66 days between March 2018 and December 2019, followed by oral argument in June 2020. The charges were extensive and highly technical. Mr Jordan was found guilty on some charges and not guilty on others. Mr Crowther was acquitted on the single charge he faced. The significance of that matter for present purposes is not whether the outcome was right or wrong. It is the scale of the process. A fully contested disciplinary case can occupy years, consume extraordinary resources, and exact a profound professional toll.
The sanction decision in Jordan deepens the point. It records evidence that the matter was not one of dishonesty, that the respondent had been under extreme pressure, that the audit had involved management and resource failures, and that career-ending deregistration would be disproportionate. Again, one need not accept every mitigating submission to appreciate what this reveals. Even a case that was complex, contested, and not characterised as dishonesty could still become professionally existential.
The Problem of Asymmetry
Institutional Power vs Individual Risk
The issue is not whether serious failings should attract serious consequences. Of course they should. The issue is whether the burdens of the process itself can become a source of pressure that materially shapes outcomes before a neutral adjudicative sequence has properly run its course.
-When the Fight Continues in Court-
Nor does the burden necessarily end at disciplinary stage. Where things go wrong, the remedy may not be any quick internal correction. It may be review litigation in the High Court. DeFries v Independent Regulatory Board for Auditors and Others (46856/13) [2016] ZAGPJHC 352 (23 December 2016) is a reminder that an auditor dissatisfied with a disciplinary outcome may then have to undertake a second, narrower and more expensive legal battle to challenge what has already occurred. That matters because judicial review is not a rehearing on the merits. It is limited, technical, and costly. In practical terms, the asymmetry between regulator and regulated professional may therefore persist even after the disciplinary decision has been taken.
The Question That Remains
The point, then, is not that IRBA lacks a public mandate. It plainly does not. The regulator is statutorily tasked with protecting the public and promoting confidence in the auditing profession. That function is indispensable. Nor is the point that all regulatory settlement discussions are improper. They are not. Early resolution can serve legitimate ends. But fairness requires more than the existence of a procedure and the language of public protection. It requires vigilance against the possibility that a formally fair structure may operate, in practice, as an instrument of pressure.
That is why Lessing matters. It does not establish that IRBA’s entire disciplinary system is unlawful. It does not relieve auditors of the obligation to meet exacting professional standards. What it does do is raise a serious and legitimate question about whether a process designed to be fair may sometimes operate unfairly in practice, especially when sanction is signalled too early and the costs of resistance are immense.
In the end, confidence in professional discipline depends on more than the punishment of misconduct. It depends on confidence that allegations of misconduct will be determined by lawful, even-handed, and genuinely fair procedures. A regulator cannot demand scrupulous integrity from the profession while treating procedural fairness as secondary. Integrity is not only what is enforced. It is also what must be embodied by the enforcement process itself.
That is the real question Lessing leaves behind. Not whether discipline is necessary, but whether the process by which it is imposed is fair enough to deserve confidence.
By Jacobs & Potgieter Incorporated /// 24 March 2026