Financial Intelligence Centre Amendment Act

Link to law: http://www.gov.za/documents/financial-intelligence-centre-amendment-act
Published: 2008-08-27

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Financial Intelligence Centre Amendment Act [no 11 of 2008]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 518 Cape Town 27 August 2008 No. 31365
THE PRESIDENCY No. 922 27 August 2008
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 11 of 2008: Financial Intelligence Centre Amendment Act, 2008.

ACT To a m e n d the Financial Intel l igence Centre Act , 2 0 0 1 , so as to define or further define certain words and express ions; to clarify the appl icat ion of the Ac t in relation to other laws; to extend the object ives and funct ions of the Centre ; to change the n a m e of the M o n e y Launder ing Advi sory Counci l ; to clarify certain provis ions; to update references to legis lat ion; to provide for the shar ing of information by the Centre and supervisory bodies; to provide for the i s suance of directives by the Centre and supervisory bodies; to provide for the registrat ion of accountable and report ing inst i tut ions; to clarify the roles and responsibi l i t ies of supervisory bodies; to provide for wri t ten arrangements relating to the respect ive roles and responsibil it ies of the Centre and supervisory bodies ; to authorise the Centre and supervisory bodies to conduct inspect ions; to regulate certain applications to court; to provide for administrat ive sanct ions that m a y be i m p o s e d by the Centre and supervisory bodies ; to establish a n appeal board to hear appea l s against decis ions of the Centre or supervisory bodies; to m a k e further provis ion for offences; and to provide for mat ters connected therewith .


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
(c) by the substitution in subsection (1) for the definition of " C o u n c i l " of the following definition:
'Counci l ' means the [Money] Coun te r -Money Launder ing Advisory Council established by section 1 7 ; " ;
(d) by the insertion in subsect ion (1) after the definition of " e n t i t y " of the following definition:
" ' inspector' means a person appointed in terms of section 4 5 A ; " ; (e) by the insertion in subsection (1) after the definition of "Nat iona l Director of
Public Prosecu t ions" of the following definition: " 'non-compl iance ' means any act or omiss ion , and 'fails to c o m p l y ' , 'failure to comply ' and 'not comply ing ' have the same m e a n i n g ; " ;
(f) by the insertion in subsection ( I ) after the definition of "superv isory b o d y " of the following definition:
" 'terrorist and related act ivit ies ' has the mean ing assigned to it in section 1 of the Protect ion of Const i tut ional Democracy Against Terrorist and Related Activi t ies Act . 2004 (Act N o . 33 of 2 0 0 4 ) ; " ; and
(g) by the substitution in subsect ion (1) for the definition of " th i s A c t " of the following definition:
" 'this Act ' includes [a regulation m a d e in t erms of section 77] any regulation made or exempt ion given under this Ac t ; " .
Insertion of section 1A in Act 38 of 2001
2. The following section is hereby inserted in the principal Act after section 1:
"Applicat ion of Act w h e n in conflict wi th other laws
1A. If any conflict, relating to the mat ters deal t with in this Act , arises between this Act and the provis ions of any other law exist ing at the commencemen t of this Act , save the Const i tut ion, the provis ions of this Act p reva i l . " .
A m e n d m e n t of section 3 of Act 38 of 2 0 0 1 , as a m e n d e d by sect ion 2 7 of Act 3 3 of 2004
3 . Section 3 of the principal Act is hereby a m e n d e d — (a) by the substitution in subsect ion (2) for paragraphs (a) and (b) of the following
paragraphs, respectively: "(a) to m a k e information col lected by it avai lable to invest igat ing
authorit ies, supervisory bodies , the intel l igence services and the South African Revenue Services to facilitate the adminis t ra t ion and enforcement of the laws of the Republ ic ;
(b) to exchange information with [s imilar] bodies with similar objectives in other countr ies regarding money laundering activit ies, the financing of terrorist and related activit ies, and other s imilar [offences.] ac t iv i t ies ;" ; and
(b) by the addition of the fol lowing paragraph: " (c ) to supervise and enforce compl iance wi th this Ac t or any direct ive
made in terms of this Act and to facilitate effective supervision and enforcement by supervisory b o d i e s . " .


Act No. 11, 2008 FINANCIAL INTELLIGENCR CENTRE AMENDMENT ACT. 2008
A m e n d m e n t of sect ion 4 of Act 38 of 2001
4. Section 4 of the principal Act is hereby a m e n d e d — (a) by the substitution for paragraph (c) of the fol lowing paragraph:
"(c) moni tor and give guidance to accountable inst i tut ions, supervisory bodies and other persons regarding the per formance and compl i ­ ance by them of their duties and [ their co m pl i a nce wi th the provis ions] obl igat ions in terms of this Ac t or any direct ive made in terms of this A c t ; " ; and
(b) by the addit ion of the following paragraphs: "(e) annually review the implementa t ion of this Ac t and submit a report
thereon to the Minister; (f) implement a registration system in respect of all accountable
institutions and report ing insti tutions; and (g) supervise and enforce compl iance with this Act or any direct ive
made in terms of this Act by accountable insti tutions, report ing institutions and other persons to w h o m the provis ions of this Act apply tha t—
(i) are not regulated or supervised by a supervisory body in terms of this Act or any other law;
(ii) are regulated or supervised by a supervisory body in terms of this Ac t or any other law, if that supervisory body fails to enforce compl iance despi te any r ecommenda t ion of the Centre made in terms of section 44(b).''.
Subst i tut ion of heading to Chapter 2 of Act 38 of 2001
5. The following heading is hereby substituted for the heading to Chapte r 2: [ M O N E Y ] C O U N T E R - M O N E Y L A U N D E R I N G A D V I S O R Y C O U N ­
CIL .
A m e n d m e n t of section 17 of Act 38 of 2001
6. The following section is hereby substituted for section 17 of the principal Act :
"Establ i shment
17. [A M o n e y ] A Counte r -Money Launder ing Advisory Counci l is hereby es tab l i shed ." .
A m e n d m e n t of section 26 of Act 38 of 2001
7. Section 26 of the principal Act is hereby amended by the substi tut ion for subsection (1) of the following subsection:
" (1 ) An authorised representat ive of the Centre has access dur ing ordinary working hours to any records kept by or on behalf of an accountable institution in terms of" section 22 or section 24, and may examine , m a k e extracts from or copies of, any such records for the purposes of obtaining further information in respect of a report made in terms of section 28 , 2 8 A . 29 , 30(1) or 3 1 . " .
A m e n d m e n t of sect ion 30 of Act 38 of 2001
8. Section 30 of the principal Act is hereby amended by the substi tut ion for subsection (1) of the fol lowing subsection:
" (1 ) A person [ intending to convey] w h o intends convey ing or w h o has conveyed or w h o is conveying an amount of cash or a bearer negot iable instrument


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT, 2008
in excess of the prescr ibed amount to or from the Republ ic must , [before that person conveys the cash into or out of the Republ ic ] on demand , report the prescribed particulars concern ing that conveyance to a person authorised by the Minister for this pu rpose . ' ' .
A m e n d m e n t of section 34 of Ac t 38 of 2001 , as a m e n d e d by sect ion 27 of Act 33 of 2004
9. Section 34 of the principal Act is hereby amended by the substitution for subsect ion (3) of the following subsect ion:
" (3) Subsect ion (1) does not apply to the carrying out of a transaction to which the rules of an exchange l icensed in terms of the [Stock Exchanges Control Ac t , 1985, or the Financial Marke t s Control Act , 1989] Securi t ies Services Act, 2004 (Act No . 36 of 2004) , app ly . " .
A m e n d m e n t of sect ion 36 of Act 38 of 2001
10. Section 36 of the principal Act is hereby a m e n d e d — (a) by the substi tution for subsect ions (1) and (2) of the following subsect ions ,
respectively: " (1 ) If a supervisory body or the South African Revenue Service
k n o w s or suspects that an accountable insti tution!, as a result of a transact ion conc luded by or wi th the accountable inst i tut ion,] wittingly or unwit t ingly has received or is about to receive the proceeds of unlawful activities or has been used or may be used in future for money launder ing purposes or for the purpose of any transaction contempla ted in section 29(\)(b), it mus t advise the Centre and any authority, service or body contempla ted in section 3 or any other supervisory body that, in the opinion of the supervisory body or the South African Revenue Service, may have an interest therein, of that fact and furnish [the Centre] them with all information and any records regarding that knowledge or suspicion which [the Centre] they may reasonably require [for the ach ievement of its object ives] to identify the proceeds of unlawful activities or to combat money launder ing activities or financing of terrorist and related activit ies.
(2) If the Cent re bel ieves that a supervisory body or the South African Revenue Service may have information indicating that an accountable ins t i tu t ion^ as a result of a transact ion conc luded by or wi th the accountable inst itution,] wittingly or unwit t ingly has received or is about to receive the proceeds of unlawful activit ies or has been used or may be used in future for money launder ing purposes or for the purpose of any t ransact ion contempla ted in section 29(1 )(b), the Centre may request that supervisory body or the South African Revenue Service to confirm or rebut that belief and the supervisory body or South African Revenue Service , as the case may be, must do so and, if that belief is confirmed, must furnish the Centre and any authority, service or body referred to in section 3 or any other supervisory body identified by the Centre that may have an interest in that matter with all information and any records regarding that knowledge or suspicion which the Centre may reasonably require for the achievement of its ob jec t ives . " .
A m e n d m e n t of sect ion 37 of Ac t 38 of 2001
11. Section 37 of the principal Act is hereby amended by the substi tution for subsection (1) of the fol lowing subsect ion:
" (1 ) Subject to subsect ion (2), no duty of secrecy or confidentiality or any other restriction on the disclosure of information, whether imposed by legislation or arising


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
from the c o m m o n law or agreement , affects compl iance by an accountable institution, supervisory body, report ing institution, the South African Revenue Service or any other person with a provision of this Part, Part 4 and Chapter 4 . " ;
A m e n d m e n t of section 38 of Ac t 38 of 2001
12. Section 38 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsect ion:
" (1) N o action, whether cr iminal or civil, lies against an accountable institution, report ing institution, supervisory body, the South African Revenue Service or any other person complying in good faith with a provis ion of this Part, Part 4 and Chapter 4, including any director, employee or other person act ing on behalf of such accountable institution, reporting institution, supervisory body, the South African Revenue Service or such other pe r son . " .
A m e n d m e n t of section 40 of Act 38 of 2 0 0 1 , as a m e n d e d by sect ion 27 of Ac t 33 of 2004
13. Section 4 0 of the principal Act is hereby amended by the addition of the fol lowing subsection:
" (7) The Centre may m a k e available any information obtained by it dur ing an inspection to an organ of state, a supervisory body, other regulatory authority, self-regulating associat ion or organisat ion that is affected by or has an interest in that informat ion." .
Insert ion of sections 43A and 4 3 B in Ac t 38 of 2 0 0 1
14. The following sections are hereby inserted in Part 4 of Chapter 3 of the principal Act, after section 4 3 :
"Directives
43A. (1) The Centre may, by notice in the Gazette, issue a directive to all institutions to w h o m the provis ions of this Act apply, regarding the application of this Act .
(2) The Centre or a supervisory body may, in wri t ing, issue a direct ive to any category of accountable institutions or category of report ing institu­ tions or other category of person to w h o m the provisions of this Act apply, regarding the application of this Act .
(3) The Centre or a supervisory body may in writ ing, over and above any directive contemplated in subsection (1) or (2), issue a directive to any accountable institution, category of accountable insti tutions, report ing institution, category of report ing insti tut ions or other person to w h o m the provis ions of this Act apply, t o — (a) provide the Centre or that supervisory body, as the case may b e —
(i) with the information, reports or statistical returns specified in the notice, at the t ime or at the intervals specified in the not ice; and
(ii) within the period specified in the notice, with any documen t in its possession or custody or under its control ;
(b) cease or refrain from engaging in any act, omission or conduct in contravent ion of this Act :
(c) perform acts necessary to remedy an al leged non-compl iance with this Act; or
(d) perform acts necessary to meet any obligation imposed by this Act .


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
(4) The Centre or supervisory body m a y examine a document submit ted to it in terms of subsection (3)(a) or make a copy thereof or part thereof.
(5) The costs incurred in comply ing with a direct ive mus t be borne by the accountable institution, report ing institution or person concerned.
(6) (a) The Centre , in respect of any accountable insti tution or category of accountable institutions regulated or supervised by a supervisory body in terms of this Act or any other law, may issue a directive in accordance with subsections (2) and (3) only if a supervisory b o d y — (i) failed to issue a directive despite any recommenda t ion of the Centre
made in terms of section 44(b): or (ii) failed to issue a directive within the period specified by the Centre .
(b) A supervisory body may issue a direct ive in te rms of this section only after consult ing the Centre on that direct ive.
Registration by accountable institution and report ing institution
43B. (1) Every accountable institution referred to in Schedule 1 and every report ing institution referred to in Schedule 3 must , within the prescribed period and in the prescribed manner , register wi th the Centre .
(2) The registration of an accountable institution and a reporting institution contemplated in subsect ion (1) mus t be accompanied by such particulars as the Centre may require .
(3) The Centre must keep and maintain a register of every accountable institution and report ing institution registered in te rms of subsect ion (1).
(4) A registered accountable institution or report ing institution must notify the Centre , in writ ing, of any changes to the part iculars furnished in terms of this section within 90 days after such a c h a n g e . " .
A m e n d m e n t of section 45 of Act 38 of 2001
15. Section 45 of the principal Act is hereby a m e n d e d — (a) by the substitution for subsection (1) of the fol lowing subsect ion:
" (1 ) [Each] Every supervisory body is responsible for supervising and enforcing compl iance with [the provis ions of this Chapter by each accountable inst i tut ion] this Act or any order, determinat ion or directive made in terms of this Act by all accountable institutions regulated or supervised by i t . " : and
(b) by the insertion after subsection (1) of the following subsect ions: " ( 1 A ) (a) The obligat ion referred to in subsect ion (1) forms part of the
legislative manda te of any supervisory body and const i tutes a core function of that supervisory body.
(b) Any Act that regulates a supervisory body or authorises that supervisory body to supervise or regula te any accountable institution must be read as including subsect ion (1) , and a supervisory body may utilise any fees or charges it is authorised to impose or collect to defray expendi ture incurred in performing its obl igat ions under this Act or any ! order, determinat ion or directive made in te rms of this Act.
( I B ) A supervisory body, in meet ing its obligat ion referred to in subsection (1), m a y —


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
(a) in addit ion to any powers it has in terms of another Act , exerc ise any power afforded to it in this Act ;
(b) delegate the exercise of any power contempla ted in paragraph (a)lo any of its member s , employees or any other suitable person;
(c) take any measures it considers necessary or expedient to mee t its obl igat ions imposed by this Act or any order, de terminat ion or directive made in terms of this Act , or to achieve the object ives of the Centre or this Act;
(d) require an accountable institution supervised or regulated by it to report on that insti tution's compl iance with this Act or any order, determinat ion or directive m a d e in terms of this Act in the form, manner and t imeframes de termined by the supervisory body;
(e) issue or amend any l icence, registration, approval or authorisat ion that the supervisory body may issue or grant in accordance wi th any Act, to include the following condi t ions:
(i) compl iance with this Act; and (ii) the cont inued availability of human , financial, technological
and other resources to ensure compl iance with this Act or any order, determinat ion or direct ive m a d e in terms of this Act ; and
(f) in making a determinat ion in accordance with any Ac t appl icable to it as to whether a person is fit and proper to hold office in an accountable institution, take into account any involvement , whe ther directly or indirectly, by that person in any non-compl iance with this Act or any order, determinat ion or direct ive made in t e rms of this act, or, prior to the c o m m e n c e m e n t of this Act or at any t ime thereafter, any involvement in—
(i) any money laundering activity; or (ii) any terrorist or related activity.
( I C ) A supervisory body must submit to the Centre , within the prescribed period and in the prescribed manner , a written report on any action taken against any accountable institution in terms of this Act or any order, determinat ion or directive m a d e in terms of this Act .
( I D ) The Centre and a supervisory body must co-ordinate their approach to exercis ing their powers and performing their functions in terms of this Act to ensure the consistent appl icat ion of the Act, and must enter into a written m e m o r a n d u m of unders tanding in respect thereof. ' ' .
A m e n d m e n t of Chapter 4 of Act 38 of 2001
16. Chapter 4 of the principal Act is hereby a m e n d e d — (a) by the substitution for the heading to that Chapte r of the following heading:
[ O F F E N C E S A N D P E N A L T I E S ] C O M P L I A N C E A N D E N F O R C E ­ M E N T " ; and
(b) by the insertion in that Chapter, after section 45 , of the fol lowing sect ions:
'Appointment of inspectors
45A. (1) The Director or the head of a supervisory body, as the case may be, may appoint any person in the service of the Cent re or supervisory body or any other suitable person as an inspector.


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
(2) The Director or the head of a supervisory body may de te rmine the remunerat ion to be paid to a person w h o is appointed in terms of subsect ion (1) that is not in the full-time service of the Cent re or supervisory body.
(3) (a) The Director or the head of a supervisory body must issue an inspector contemplated in subsect ion (1) with a certificate of appoin tment signed by the Director or the head of that supervisory body.
(b) A certificate of appoin tment must speci fy— (i) the full n a m e of the person so appointed;
(ii) his or her identity number ; (iii) his or her s ignature; (iv) his or her photograph; (v) a descript ion of the capacity in which he or she is appointed;
and (vi) the extent of his or her powers to inspect.
(4) (a) Where the head of a supervisory body is authorised by any other Act to appoint inspectors , the head may extend the appoin tment and functions of inspectors under that Ac t to include the under taking of inspections under this Act .
(b) A n inspector whose appoin tment or functions have been extended under paragraph (a) may, in under taking inspect ions under this Act, in addition to the functions afforded to such inspector under the Act contemplated in paragraph (a), perform the functions afforded in this Act.
(c) A n y extension con templa ted in paragraph (a) must be reflected in any certificate or appoin tment document issued by the head of the supervisory body to an inspector under the Act contempla ted in that paragraph.
(5) When an inspector under takes an inspect ion in terms of this Act , the inspector m u s t — (a) be in possession of a certificate of appoin tment issued in terms of
subsection (3) or contempla ted in subsect ion 4(c) ; and (b) on request, show that certificate to any person w h o i s —
(i) affected by the per formance of the functions of the inspector: or (ii) is in charge of any premises to be inspected.
Inspect ions
45B. (1) For the purposes of de te rmining compl iance with this Act or any order, determinat ion or direct ive m a d e in terms of this Act , an inspector may at any reasonable t ime and on reasonable notice, where appropria te , enter and inspect any premises at which the Centre or, when acting in terms of section 45(1) , the supervisory body reasonably bel ieves that the bus iness of an accountable institution, report ing institution or other person to w h o m the provisions of this Act apply, is conducted .
(2) An inspector, in conduc t ing an inspect ion, m a y — (a) in writ ing direct a person to appear for quest ioning before the
inspector at a t ime and place de te rmined by the inspector; (b) order any person w h o has or had any document in his, her or its
possession or under his, her or its control relating to the affairs of the accountable insti tution, report ing institution or p e r s o n —
(i) to p roduce that document ; or (ii) to furnish the inspector at the p lace and in the manner
de termined by the inspector with information in respect of that document ;
(c) open any s t rongroom, safe or other container, or order any person to open any s t rongroom, safe or other container, in which the inspector suspects any documen t relevant to the inspection is kept;


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
(d) use any compute r system or equ ipment on the premises or require reasonable assistance from any person on the premises to use that computer system t o —
(i) access any data contained in or available to that computer system; and
(ii) reproduce any document from that data; (e) examine or m a k e extracts from or copy any documen t in the
possession of an accountable institution, report ing institution or person or, against the issue of a receipt, r emove that document temporar i ly for that purpose ; and
(f) against the issue of a receipt, seize any documen t obtained in terms of paragraphs (c) to (e). which in the opinion of the inspector may constitute evidence of non-compl iance with a provision of this Act or any order, determinat ion or direct ive made in terms of this Act.
(3) An accountable institution, report ing institution or other person to whom this Act applies, must without delay provide reasonable assistance to an inspector acting in te rms of subsection (2).
(4) The Centre or a supervisory body may recover all expenses necessarily incurred in conduct ing an inspect ion from an accountable institution, report ing institution or person inspected.
(5) (a) Subject to section 36 and paragraph (b), an inspector may not disclose to any person not in the service of the Centre or supervisory body any information obtained in the per formance of functions under this Act .
(b) An inspector may disclose in format ion— (i) for the purpose of enforcing compl iance with this Act or any order,
determinat ion or direct ive made in te rms of this Act; (ii) for the purpose of legal p roceed ings ;
(iii) when required to do so by a court ; or (iv) if the Director or supervisory body is satisfied that it is in the public
interest. (6) (a) A n inspector appointed by the Director may, in respect of any
accountable institution regulated or supervised by a supervisory body in terms of this Act or any other law, conduc t an inspect ion only if a supervisory body failed to conduct an inspect ion despi te any r ecommenda­ tion of the Centre m a d e in terms of section 44(b) or failed to conduct an inspection within the period r e c o m m e n d e d by the Centre .
(b) An inspector of a supervisory body may conduct an inspection, other than a routine inspection in terms of this sect ion, only after consultat ion with the Centre on that inspect ion.
(c) An inspector appointed by the Director may on the request of a supervisory body accompany and assist an inspector appointed by the head of a supervisory body in conduct ing an inspect ion in terms of this section.
(7) N o warrant is required for the purposes of an inspect ion in terms of this section.
Adminis trat ive sanct ions
45C. (1) The Centre or a supervisory body m a y impose an adminis trat ive sanction on any accountable inst i tut ion, repor t ing institution or other person to w h o m this Ac t applies when satisfied on available facts and information that the institution or p e r s o n — (a) has failed to comply with a provis ion of this Act or any order,
determinat ion or direct ive m a d e in te rms of this Act;


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT, 2008
(b) has failed to comply with a condi t ion of a l icence, registration, approval or authorisation issued or amended in accordance with section 45(1B)(V);
(c) has failed to comply with a direct ive issued in te rms section 34(1) or 43A(3) ; or
(d) has failed to comply with a non-financial adminis t ra t ive sanction imposed in terms of this section.
(2) When determining an appropriate adminis t ra t ive sanct ion, the Cent re or the supervisory body must consider the fol lowing factors: (a) The nature, durat ion, ser iousness and extent of the relevant non­
compl iance ; (b) whether the institution or person has previously failed to comply with
any law; (c) any remedial steps taken by the institution or person to prevent a
recurrence of the non-compl iance ; (d) any steps taken or to be taken against the insti tution or person b y —
(i) another supervisory body; or (ii) a voluntary associat ion of which the institution or person is a
member ; and (e) any other relevant factor, inc luding mi t iga t ing factors.
(3) T h e Centre or supervisory body may impose any one or more of the following adminis trat ive sanct ions: (a) A caution not to repeat the conduc t wh ich led to the non-compl iance
referred to in subsection (1); (b) a repr imand; (c) a direct ive to take remedial act ion or to m a k e specific a r rangements ; (d) the restriction or suspension of certain specified bus iness activit ies; or (e) a financial penalty not exceeding RIO mil l ion in respect of natural
persons and R 5 0 mill ion in respect of any legal person. (4) The Centre or supervisory body m a y —
(a) in addition to the imposit ion of an adminis t ra t ive sanction, m a k e recommenda t ions to the relevant insti tution or person in respect of compl iance with this Act or any order, de te rmina t ion or direct ive made in terms of this Act;
(b) direct that a financial penalty must be paid by a natural person or persons for whose act ions the re levant inst i tut ion is accountable in law, if that person or persons was or were personal ly responsible for the non-compl iance ;
(c) suspend any part of an adminis t ra t ive sanct ion on any condition the Centre or the supervisory body d e e m s appropr ia te for a per iod not exceeding five years .
(5) Before imposing an adminis t ra t ive sanct ion, the Cent re or supervi­ sory body must give the institution or person reasonab le notice in wr i t i ng— (a) of the nature of the al leged non-compl iance : (b) of the intention to impose an adminis t ra t ive sanct ion; (c) of the amount or part iculars of the intended adminis t ra t ive sanct ion;
and (d) that the institution or person may, in wri t ing, within a period specified
in the notice, make representa t ions as to why the adminis t ra t ive sanction should not be imposed.
(6) (a ) After consider ing any representa t ions and the factors referred to in subsection (2), the Centre , subject to paragraph (c). or supervisory body may impose an administrat ive sanct ion the Cen t re or supervisory body considers appropriate .
(b) Upon imposing the adminis t ra t ive sanct ion the Centre or supervisory body must , in writ ing, notify the insti tution or p e r s o n — (i) of the decis ion and the reasons therefor; and


Act No. 11. 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
(ii) of the right to appeal against the decis ion in accordance with section 4 5 D .
(c) The Centre must , prior to taking a decis ion contempla ted in paragraph (a), consult the relevant supervisory body, if appl icable .
(7) (a) Any financial penalty imposed mus t be paid into the Cr iminal Assets Recovery Account es tabl ished by section 63 of the Prevent ion Ac t within the period and in the manner as may be specified in the relevant notice.
(b) If the institution or person fails to pay the financial penal ty within the specified period and an appeal has not been lodged within the required period, the Centre or supervisory body may forthwith file wi th the clerk or registrar of a competent court a certified copy of the notice contempla ted in subsection (6)(b), and the notice thereupon has the effect of a civil j udgmen t lawfully given in that court in favour of the Centre or supervisory body.
(8) An adminis trat ive sanction con templa ted in this section may not be imposed if the respondent has been charged with a criminal offence in respect of the same set of facts.
(9) If a court assesses the penalty to be imposed on a person convic ted of an offence in terms of this Act, the court must take into account any administrat ive sanction imposed under this section in respect of the same set of facts.
(10) An adminis trat ive sanction imposed in terms of this Act does not consti tute a prev ious convict ion as con templa ted in Chapte r 27 of the Criminal Procedure Act . 1977 (Act N o . 51 of 1977).
(11) Unless the Director or supervisory body is of the opinion that there are except ional c i rcumstances present that justify the preservat ion of the confidentiality of a decision the Director or supervisory body must m a k e public the decis ion and the nature of any sanction imposed if— (a) an institution or person does not appeal against a decis ion of the
Centre or supervisory body within the required per iod; or (b) the appeal board confirms the decis ion of the Centre or supervisory
b o d y " .
Appeal
4 5 D . (1) (a) Any institution or person may appeal against a decision of the Centre or supervisory body m a d e in terms of section 45C(6) to the appeal board.
(b) An appeal must be lodged within 30 days in the manner , and on payment of the fees, prescribed by the Minister .
(2) An appeal under subsect ion (1) shall take place on the date and at the place and time de termined by the appeal board.
(3) An appeal is decided on the affidavits and support ing document s presented to the appeal board by the part ies to the appeal .
(4) Despi te the provis ions of subsect ion (3) the appeal board m a y — (a) s u m m o n any person who , in its opinion, may be able to give
information for the purposes of the appeal or w h o it bel ieves has in his, her or its possess ion, custody or control any document which has any bearing upon the decis ion under appeal , to appear before it at a t ime and place specified in the s u m m o n s , to be ques t ioned or to produce that document , and retain for examinat ion any document so produced;
(b) adminis ter an oath to or accept an affirmation from any person called as a witness at an appeal ; and
(c) call any person present at the appeal proceedings as a witness and interrogate such person and require such person to p roduce any document in his, her or its possess ion, custody or control , and such a person shall be entitled to legal representat ion at his or her own expense .
(5) The chairperson of the appeal board de te rmines any other procedural matters relating to an appeal .


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT, 2008
(6) Any party to an appeal is entitled to be represented at an appeal by a legal representat ive.
(7) The appeal board m a y — (a) confirm, set aside or vary the relevant decision of the Cent re or
supervisory body; or (b) refer a matter back for considerat ion or reconsiderat ion by the Cent re
or the supervisory body concerned in accordance with the direct ions of the appeal board.
(8) The decision of a majority of the m e m b e r s of the appeal board shall be the decis ion of that board.
(9) The decision of the appeal board mus t be in wri t ing, and a copy thereof mus t be made available to the appellant and the Centre or supervisory body.
(10) (a) If the appeal board sets aside any decision of the Cent re or supervisory body, the fees contempla ted in subsect ion (\)(b) paid by the appellant in respect of the appeal in quest ion mus t be refunded to the appellant .
(b) If the appeal board varies any such decis ion, it may in its discret ion direct that the whole or any part of such fees be refunded to the appellant .
(11) (a) Subject to paragraph (b), a decis ion of the appeal board may be taken on appeal to the High Cour t as if it were a decis ion of a magistrate in a civil matter.
(b) The launching of appeal proceedings in terms of paragraph (a) does not suspend the operat ion or execut ion of a decis ion, unless the chai rperson of the appeal board directs o therwise .
Establ i shment of appeal board
4 5 E . (1) An appeal board is hereby establ ished. (2) The Minis ter must appoint as m e m b e r s of the appeal board so many
persons as the Minis ter may consider necessary, with an al ternate for each of them, of w h o m — (a) one must be an advocate or at torney with at least ten years exper ience ,
w h o will be the chairperson; and (b) at least two must be persons with exper ience and expert knowledge of
financial institutions and financial services. (3) A m e m b e r of the appeal board holds office for a period of three years
and is eligible for reappointment on the expirat ion of his or her term of office.
(4) An alternate acts as a m e m b e r w h e n — (a) a m e m b e r is absent, has recused himself or herself or is suspended; or (b) the filling of a vacancy on the appeal board is pending.
(5) Any vacancy that occurs on the appeal board must be filled in accordance with subsect ion (2) and any person so appointed holds office for the unexpired port ion of the period of office of his or her predecessor.
(6) T h e appeal board may co-opt any person having expert knowledge of a part icular mat ter to assist the board in cons ider ing an appeal .
(7) A person co-opted under subsection (6) m a y not part icipate in any decision of the appeal board.
(8) If before or dur ing the considerat ion of any appeal it t ranspires that any m e m b e r of the appeal board has any direct or indirect personal interest in the ou tcome of that appeal , that m e m b e r mus t recuse himself or herself and must be replaced by the alternate member .
(9) The Minis te r may terminate the period of office of a m e m b e r of the appeal b o a r d — (a) if the performance of the m e m b e r is unsatisfaciory; or (b) if the member , either through il lness or for any other reason, is unable
to perform the functions of office effectively. J (10) (a) The Minis ter may, if the performance of the appeal board is
unsatisfactory, terminate the period of office of all the m e m b e r s of the anneal board.


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT, 2008
(b) In the event of the dismissal of all the m e m b e r s of the appeal board, the Minister may appoint persons to act as caretakers until competent persons are appointed in terms of subsect ion (2).
(11) A m e m b e r of the appeal board may be paid such remunera t ion and a l lowances as the Minis ter may from l ime to t ime de termine .
(12) The Centre must provide adminis t ra t ive support for the appeal board.
(13) The Centre is responsible for the expendi ture of the appeal board.
Appl icat ion to court 45F. (1) (a) The Centre , in respect of any accountable institution
regulated or supervised by a supervisory body in terms of this Act or any other law, may institute proceedings in accordance with this section only if a supervisory body failed to institute p roceedings despite any r e c o m m e n ­ dation of the Cent re m a d e in terms of section 44(b) or failed to institute proceedings within the period r e c o m m e n d e d by the Cent re .
(b) A supervisory body may institute p roceedings in accordance with this section only after consul tat ion with the Cent re on that appl icat ion to court.
(2) Subject to subsect ion (1), the Cent re or any supervisory body may institute proceedings in the High Cour t having jur isdict ion against any accountable institution, report ing institution or person to w h o m this Act applies, to—• (a) d ischarge any obligation imposed on the Cent re or supervisory body in
terms of this Act : (b) compel that institution or person to comply with any provis ion of this
Act or to cease contravening a provis ion of this Act ; (c) compel that institution or person to comply with a direct ive issued by
the Centre or supervisory body under this Act ; or (d) obtain a declaratory order against that insti tution or person on any
point of law relating to any provision of this Act or any order, determinat ion or direct ive made in terms of this Act .
(3) Subject to subsect ion (1). if the Cent re or a supervisory body has reason to believe that an institution or person is not comply ing with this Act or any order, determinat ion or direct ive m a d e in te rms of this Act, it may. if it appears that prejudice has occurred or might occur as a result of such non-compl iance , apply to a court having jur isdict ion for— (a) an order restraining that institution or person from cont inuing business
pending an application to court by the Cent re or supervisory body as contempla ted in subsection (2): or
(b) any other legal remedy available to the Centre or supervisory body . " .
Insert ion of sect ion 51A in Act 38 of 2001
17. The following section is hereby inserted in the principal Act after section 5 1 :
"Failure to report property assoc iated wi th terrorist a n d related activit ies
51A. (1) A n accountable institution that has in its possession or under its control property owned or control led by or on behalf of, or at the direction of an entity contemplated in section 28A(1) , and that fails, within the prescribed period, to report that fact and the prescr ibed information in respect of such property to the Centre in accordance wi th that sect ion, is guilty of an offence.
(2) An accountable institution that fails to comply with a direct ion by the Director in accordance with section 28A(2) , is guilty of an offence." .


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT, 2008
Substitution of section 54 of Act 38 of 2001
18. The following section is hereby substi tuted for section 54 of the principal Act :
"Failure to report conveyance of cash or bearer negot iable ins trument into or out of Republ ic
54 . Any person w h o wilfully fails to report the conveyance of cash or a bearer negot iable ins t rument into or out of the Republ ic in accordance with section 30(1) , is guilty of an offence ." .
Subst i tut ion of sect ion 55 of Act 38 of 2001
19. The following section is hereby subst i tuted for section 55 of the principal Act :
"Failure to send report to Centre
55 . A person referred to in sect ion 30(2) w h o fails to send a report regarding the conveyance of cash or a bearer negotiable ins t rument to the Centre in accordance with that sect ion, is guil ty of an offence." .
Subst i tut ion of sect ion 57 of Ac t 38 of 2001
20. The following section is hereby subst i tuted for section 57 of the principal Act:
"Failure to comply wi th request
57. An accountable institution, repor t ing institution or any other person that fails to comply with a request m a d e b y — (a) the Centre or an invest igat ing authori ty act ing under the authori ty of
an authorised officer in terms of sect ion 32(2) ; or (b) a supervisory body in te rms of sect ion 45( 1 B)(t/j , is guilty of an offence." .
Substitution of section 58 of Act 38 of 2001
21 . The following section is hereby subst i tuted for section 58 of the principal Act:
"Failure to comply wi th [direct ion by Centre ] directives
58. An accountable institution that fails to comply with a [direct ion by] directive of the Centre or a supervisory body in terms of section 34(1) . 43A(3) or 45C(c) (3) , is guilty of an offence ." .
A m e n d m e n t of sect ion 6 0 of Ac t 38 of 2001
22. Section 6 0 of the principal Act is hereby a m e n d e d by the substi tution in subsection ( I ) for paragraph {a) of the fol lowing paragraph:
"(a) discloses confidential information held by or obtained from the Cent re otherwise than in accordance with section 4 0 or 4 1 ; " .
Insert ion of section 61A in Act 38 of 2 0 0 1
23 . The following section is hereby inserted in the principal Act after section 6 1 :
"Failure to register with Centre
61A. Any accountable institution or repor t ing institution tha t— (a) fails to register with the Cent re in te rms of section 4 3 B ; or (b) fails to provide information in terms of section 4 3 B . is guilty of an offence." .


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT, 2008
Insertion of sections 62A, 62B and 6 2 C in Act 38 of 2001
24. The following sections are hereby inserted in the principal Act after section 62 :
"Offences relat ing to inspect ion
62A. A person w h o — (a) fails to appear for quest ioning in te rms of section 45B(2) (a ) ; (b) fails to comply with an order con templa ted in section 45B(2) (£ ) ; (c) wilfully g ives false information to an inspector; (d) fails to comply with any reasonable request by an inspector in the
performance of his or her functions; or (e) wilfully hinders an inspector in the performance of his or her
functions, is guilty of an offence.
Hinder ing or obstruct ing appeal board
6 2 B . Any person w h o wilfully interrupts the proceedings of the appeal board or w h o wilfully hinders or obstructs the appeal board in the performance of its functions, is guilty of an offence.
Failure to at tend w h e n s u m m o n e d
6 2 C . Any person who , having been s u m m o n e d to attend and give evidence or to p roduce any book, documen t or object before the Cent re or a supervisory body or the appeal b o a r d — (a) fails without sufficient cause to appear at the t ime and place specified
or to remain in a t tendance until excused; or (b) at tends as required, b u t —
(i) refuses to take an oath or to make affirmation; or (ii) fails to produce a book, document or other i tem as ordered , if
it is in the possession of, or under the control of, that person, is guilty of an offence.
Failure to a n s w e r fully or truthful ly
6 2 D . Any person who , having been sworn in or having m a d e an affirmation before the Centre or a supervisory body or the appeal b o a r d — (a) fails to answer any quest ion fully and to the best of that pe rson ' s
ability: or (b) gives false ev idence , knowing or bel ieving it to be false, is guilty of an offence." .
A m e n d m e n t of sect ion 68 of Act 38 of 2001
25. The following section is hereby substi tuted for section 68 of the principal Act:
"Penalt ies
68 . (1) A person convic ted of an offence ment ioned in this Chapter , o ther than an offence ment ioned in subsect ion (2), is l iable to impr i sonment for a per iod not exceeding 15 years or to a fine not exceed ing [ R 1 0 0 0 0 000 ] R 1 0 0 mil l ion.
(2) A person convic ted of an offence ment ioned in section 55 , 6 L [or] 61 A, 62 , 62A, 6 2 B . 6 2 C or 6 2 D , is l iable to impr i sonment for a per iod not exceeding five years or to a fine not exceeding [ R l 000 0 0 0 ] R 1 0 mi l l ion . " .


Act No. 11, 2008 FINANCIAL INTELLIGENCE CENTRE AMENDMENT ACT. 2008
A m e n d m e n t of sect ion 7 0 of Ac t 38 of 2001
26. Section 70 of the principal Act is hereby amended by the substi tution for the word " c a s h " , wherever it occurs , of the words "cash or bearer negot iable ins t rument" .
A m e n d m e n t of Index to Act 38 of 2001
27. The Index to the principal Act is hereby a m e n d e d — fa) by the substitution for the heading relating to Chapter 2 of the following
heading: "Chap te r 2 [ M O N E Y ] C O U N T E R - M O N E Y L A U N D E R I N G A D V I ­ S O R Y C O U N C I L 17 -20" ; and
(b) by the substitution for the heading relat ing to Chapte r 4 of the fol lowing heading:
"Chap te r 4 [ O F F E N C E S A N D P E N A L T I E S 46-71] C O M P L I A N C E A N D E N F O R C E M E N T 4 5 A - 7 1 " .
Subst i tut ion of long title of Act 38 of 2001
28. T h e following long title is hereby substituted for the long title to the principal Act:
"To establish a Financial Intel l igence Centre and a [ M o n e y ] C o u n t e r - M o n e y Launder ing Advisory Counci l in order to c o m b a t m o n e y launder ing activit ies and the f inancing of terrorist and related activit ies; to impose certa in dut ies on institutions and other persons w h o might b e used for m o n e y launder ing purposes and the financing of terrorist and re lated activit ies; to clarify the appl icat ion of the Act in relation to other laws; to prov ide for the shar ing of informat ion by the Centre and supervisory bodies ; to provide for the i s suance of directives by the Centre and supervisory bodies ; to provide for the registration of accountable and report ing inst i tut ions; to provide for the roles a n d responsibil i t ies of supervisory bodies; to provide for wri t ten arrange­ m e n t s relating to the respective roles a n d responsibi l i t ies of the Centre and supervisory bodies ; to provide the Centre a n d supervisory bodies with powers to conduct inspect ions; to regulate certain appl icat ions to Court ; to provide for adminis trat ive sanct ions that m a y b e imposed by the Centre and supervisory bodies ; to establish an appeal board to hear appea l s against decis ions of the Centre or supervisory bodies ; to a m e n d the Prevent ion of Organised Cr ime Act , 1998, and the P r o m o t i o n of Acces s to Informat ion Act , 2000; and to provide for matters connected therewith ." .
Short title and c o m m e n c e m e n t