Financial Intelligence Centre Act [No. 38 of 2001]


Government Gazette

REPUBLIC OF SOUTH AFRICA
Vol. 438 Cape Town 3 December 2001 No. 22886
THE PRESIDENCY
No. 1262 3 December 2001
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 38 of 2001: Financial Intelligence Centre Act, 2001


2 No. 22886 GOVERNMENT GAZETTE, 3 DECEMBER 2001
Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001 -
(English text signed by the President.) (Assented to 28 November 2001.)
ACT To establish a Financial Intelligence Centre and a Money Laundering Advisory Council in order to combat money laundering activities; to impose certain duties on institutions and other persons who might be used for money laundering purposes; to amend the Prevention of Organised Crime Act, 1998, and the Promotion of Access to Information Act, 2000; and to provide for matters connected therewith.
B ) E IT ENACTED by the Parliament of the Republic of South Africa, as B follows:- INIDEX
Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Schedule 1 Schedule 2 Schedule 3 Schedule 4
FINANCIAL INTELLIGENCE CENTRE MONEY LAUNDERING ADVISORY COUNCIL MONEY LAUNDERING CONTROL MEASURES OFFENCES AND PENALTIES MISCELLANEOUS List of accountable instiiations List of supervisory bodies List of reporting institutions Amendment of laws
Definitions
1. (1) In this Act, unless the context indicates otherwise- “accountable institution” means a person referred to in Schedule 1; “authorised officer” means any officiid of-
Section
2-16 5 17-20 2 1-45 46-7 1 72-82
10
15
(a ) the South African Police Service authorised by the National Commissioner to
(b) the national prosecuting authority authorised by the National Director of 20
(c) an intelligence service authorised by the Director-General of that service to
(d ) the South African Revenue Service authorised by the Commissioner for that
“business relationship” means an arrangement between a client a d an accountable institution for the purpose of concluding transactions on a regular basis; “cash” means- (a ) coin and paper money of the Republic or of another country that is designated
act under this Act;
Public Prosecutions to act under this Act;
act under this Act; or
Service to act under this Act; 25
as legal tender and that circulates as, and is customarily used and accepted as, 30 a medium of exchange in the country of issue;
(b) travellers’ cheques; “Centre” means the Financial Intelligence Centre established by section 2; “Council” means the Money Laundering Advisory Council established by section 17; 35 “Director” means the Director of the Centre appointed in terms of section 6;
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Act No. 38, 2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001
“intelligence service” means the National Intelligence Agency or the South African Secret Service e.stablished ‘ ~ y section 3 of the Intelligence Services Act, 1994 (Act No. 38 of 1994); “investigating authority” means an authority that in terms of national legislation may investigate unlawful activities; 5 “Minister” means the M.inister of Finance; “money laundering” or “money laundering activity” means an activity which has or is likely to have the effect of concealing or disguising the nature, source, location, disposition or ]movement of the proceeds of unlawful activities or any interest which anyone has in such. proceeds, and includes any activity which 10 constitutes an offence in terms of section 64 of this Act or section 4, 5 or 6 of the Prevention Act; “National Commissioner” means the National Commissioner of the South African Police Service referred to in section 207 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); 15 “National Director of Public Prosecutions” means the National Director of Public Prosecutions referred to in section 1’79 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); “prescribed” means prescribed by the Minister by regulation in terms of section 77; 20 “Prevention Act” means, the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);
1. Sections 4, 5 and 6 of the Prevention Act read as follows: “Money laundering
4. Any person who knows or ought reasonably to have known that property is or forms part of the proceeds of unlawful activities and- (a) enters into any agreement or engages in any arrangement or transaction with anyone in connection
with that property, whether such agreement, arrangement or transaction is legally enforceable or not: or
‘b) performs any other act in connection with such property, whether it is performed independently or in concert with any other person,
which has or is likely to have the effect- (i) of concealing or disguising the nature, source, location, disposition or movement of the said
1:ii) of enabling or assisting any person who has committed or commits an offence, whether in the property or its ownership or any interest which anyone may have in respect thereof; or
Republic or elsewhere- (aa) to avoid prosecution; or (bb) to remove or diminish any property acquired directly, or indirectly, as a result of the
commission of an offence, !;hall be guilty of an offence. 4ssisting another to benefit from proceeds of unlawful activities 5. Any person who knows or caght reasonallly to have known that another person has obtained the
,~roceeds of unlawful activities, and who enteas into any agreement with anyone or engages in any ,mangement or transaction whereby- (a) the retention or the control by or on behalf of the said other person of the proceeds of unlawful
(‘6) the said proceeds of unlawful activities are used to make funds available to the said other person
shall be guilty of an offence. Acquisition, possession or use of proceeds asf unlawful activities
6. Any person who- (a) acquires; (bj uses; or ( c ) has possession of, property and who knows or ought reasonably to have known that it is or forms part of the proceeds of unlawful activities of another person, shall be guilty of an offence.”.
activities is facilitated; or
or to acquire property on hi:; or her behalf or to benefit him or her in any other way,
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Act No. 38, 2001 FINANCIAL INTELLI(2ENCE CENTRE ACT, 2001 -
“proceeds of unlawful activities” has the meaning attributed to that term in section 1 of the Prevention Act;2 “property” has the meaning attribu1.ed to that term in section 1 of the Prevention Act;3 “reporting i stitution” means a person referred to in Schedule 3; 5 “single transaction” means a transaction other than a transaction concluded in the course of a business relationship; “South African Revenue Service” means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997); 10 “supervisory body” means a functionary or institution referred to in Schedule 2; “this Act” includes a regulation made in terms of section 77; “transaction” means a transaction concluded between a client and an accountable institution in accordance with the type of business carried on by that institution; “unlawful activity” has the meaning attributed to that term in section 1 of the 15 Prevention Act?
(a ) the person has actual knowledge of that fact; or (b) the court is satisfied that-
(2) For the purposes of this Act a person has knowledge of a fact if-
(i) the person believes that there is a reasonable possibility of the existence 20
(ii) the person fails to obtain information to confirm or refute the existence of
(3) For the purposes of this Act a person ought reasonably to have known or suspected
of that fact; and
that fact.
a fact if the conclusions that he or she ought to have reached, are those which would have 25 be-n reached by a reasonably diligent and vigilant person having both-
(a ) the general knowledge, skill, training and experience that may reasonably be
(b) the general knowledge, skill, training and experience that he or she in fact has. expected of a person in his or her position; and
CHAPTER 1 30
FINANCIAL INTELLIGENCE CENTRE
Establishment
2. (1) A Financial Intelligence Centre is hereby established as an institution outside the public service but within the public administration as envisaged in section 195 of the Constitution. 35
(’2) The Centre is a juristic person.
Otljectives
3. (1) The principal objective of the Centre is to assist in the identification of the
(2) The other objectives of the Centre are- 40 prclceeds of unlawful activities and the combating of money laundering activities.
(a ) to make information collected by it available to investigating authorities, the intelligence services and the South African Revenue Service to facilitate the administration and enforcement of the laws of the Republic;
(b) to exchange information with similar bodies in other countries regarding money laundering activities and similar offences. 45
-- 2. In terms of section 1 of the Prevention Act, this term means “any property or any service, advantage,
b8:nefit or reward which was derived, received or retained, directly or indirectly, in the Republic or el sewhere, at any time before or after the commencement of this Act, in connection with or as a result or any unlawful activity camed on by any person, and includes any property representing property so d1:rived”.
3. In terms of section 1 of the Prevention Act, this t m n means “money or any other movable, immovable, corporeal or incorporeal thing, and includes any rights, privileges, claims and securities and any interest therein and all proceeds thereof”.
4. Ir terms of section I of the Prevention Act, this term means “conduct which constitutes a crime or which contravenes any law, whether such conduct occurred before or after the commencement of this Act and whether such conduct occurred in the Republic or elsewhere”,
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Act No. 38,2001 FINANCW INTELLIGENCE CENTRE ACT, 2001
Functions
4. To achieve its objectives the Centre must- (a) process, analyse and interpret information disclosed to it, and obtained by it,
in terms of this Act; (b) inform, advise and cooperate with investigating authorities, supervisory 5
bodies, the South African Revenue Service and the intelligence services; (c) monitor and give guidance to accountable institutions, supervisory bodies and
other persons regarding the performance by them of their duties and their compliance with the provisions of this Act;
(d) retain the information referred .to in paragraph (a) in the manner and for the 10 period required by this Act.
General powers
5. (1) The Centre may do all that is necessary or expedient to perform its functions effectively, which includes the power to--
(a) determine its own staff establishment and the terms and conditions of 15 employment for its staff within a policy framework determined by the Minister;
(b) appoint employees and seconded personnel to posts on its staff establishment; (c) obtain the services of any person by agreement, including any state
department, functionary or institution, to perform any specific act or function; 20 (d) acquire or dispose of any right in or to property, but rights in respect of
immovable property may be acquired or disposed of only with the consent of the Minister;
(e) open and operate its own bank accounts, subject to the Public Finance Management Act, 1999 (Act No. 1 of 1999); 25
cf) insure itself against any loss, damage, risk or liability; (8) perform legal acts or institute o:r defend any legal action in its own name; (h) engage in any lawful activity, whether alone or together with any other
organisation in the Republic or elsewhere, aimed at promoting its objectives; (i) do anything that is incidental to the xercise of any of its powers. 30
Appointment of Director
ti. (1) The Minister must appoint a fit and proper person as the Director of the Centre. (2) A person appointed as the Director :holds office-
(a) for a term not exceeding five years, but which is renewable; and (b) on terms and conditions set out i n a written employment contract, which must 35
include terms and conditions etting specific, measurable performance standards.
(3) The Minister must consult the Council before appointing a person or renewing the appointment of a person as the Director, except in the case of the appointment of the first Director. 40
Re;moval from office
7 . (1) The Minister may remove the Director from office only on the grounds referred
(2) The Minister may suspend the Director from office, pending- to in section 13 or on the grounds of misconduct, incapacity or incompetence.
(a) the determination of any enquiry as to whether grounds of misconduct, 45
(b) the outcome of a security screen.ing investigation referred to in section 13(3). incapacity or incompetence exist; or
Acting Director
8;. When the Director is absent or othernise unable to perform the functions of office, or (during a vacancy in the office of Director, the Minister may designate another 50 employee of the Centre to act as Director.
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Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001
Proof of appointment
9. If the Minister has given notice in the Gazette of any appointment of a person as the Director or as acting director, this notice may be presented in a Court as proof of the appointment.
Responsibilities of Director 5
10. (1) The Director- (a) is responsible for the performance by the Centre of its functions; (b) takes all decisions of the Centre in the exercise of its powers and the
performance of its functions, except those decisions taken in consequence of a delegation or instruction in telms of section 16; and 10
(c) is the chief executive officer and also the accounting authority of the Centre.
(a) the formation and development of an efficient and performance driven
(b) the management of the adminisxation; and 15 (c) the control, and maintenance of discipline, of staff.
(2) As the chief executive officer, the Director is responsible for-
administration;
[3) As accounting authority of the Centre the Director must perform the functions assigned to accounting authorities in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999).
which may be prescribed by the Minister. ((4) The Director performs the functiors of office subject to any policy framework 20
11. (1) The staff of the Centre consists (of- (a) the Director; and (b) persons appointed as employees of the Centre by the Director. 25
( 2 ) An employee of an organ of state may be seconded to the Centre by agreement between the Centre and such organ of state.
(3) Staff members referred to in subsection (l)(b) and persons seconded to the Centre in terms of subsection (2) perform their duties subject to the control and directions of the Director. 30
(4) If an officer or employee in the public service is seconded to the Centre, the period of llis or her service with the Centre must be calculated as part of and continuous with his or her employment in the public service, for purposes of leave, pension and any other condition of service.
in subsection (4) or, in the event of his or her death, to his or her dependants, which are not inconsistent with this section, must, with the necessary changes, continue so to
(6) No person seconded to the Centre or employed by the Centre to perform any of the
(5) The provisions of any pension law applicable to an officer or employee referred to 35
apply.
functions of the Centre may strike or induce or conspire with any other member of the 40 staf of the Centre to strike.
(7) The services of the Centre, for the purposes of the application of Chapter IV of the Labour Relations Act, 1995 (Act No. 66 of 1995), are deemed to have been designated as an essential service in terms of section '71 of that Act.
this Act. (8) All other conditions of service of stalf of the Centre are as determined in terms of 45
Security screening of staff of Centre other than Director
12. (1) No person other than the Director may be appointed or seconded to perform any of the functions of the Centre unless--
(a) information with respect to that person has been gathered in a security SO screening investigation by the National Intelligence Agency established by section 3 of the Intelligence Services Act, 1994 (Act No. 38 of 1994); and
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Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001
(b) the Director, after evaluating the gathered information, is satisfied that such person may be so appointed without the possibility that such person might be a security risk or that he or she might act in any way prejudicial to the objectives or functions of the Centre.
(2) If the Director is so satisfied, the Director must issue a certificate with respect to 5 such person in which it is certified that such person has successfully undergone a security clearance.
(3 ) Any person referred to in subsection (1) may at any time determined by the D'irector be subjected to a further security screening investigation as contemplated in subsection (l)(a). 10
(4) The Director may withdraw a certificate referred to in subsection (2) if the Director obtains information from an investigation referred to in subsection (3) which, after evaluation by the Director, causes thlz Director to believe that the person in question could be a security risk or could possibly act in any manner prejudicial to the objectives or functions of the Centre. 15
(5 ) If the certificate referred to in subsection (2) is withdrawn, the person concerned may not perform any functions of the Centre and the Director must discharge him or her from the Centre.
Security screening of Director of Centre
13. (1) No person may be appointed a:$ the Director of the Centre unless- 20 (a ) information with respect to that person has been gathered in a security
screening investigation by the National Intelligence Agency established by section 3 of the Intelligence Services Act, 1994 (Act No. 38 of 1994); and
(b) the Minister, after evaluating the gathered information, is satisfied that such person may be so appointed wil:hout the possibility that such person might be 25 a security risk or that he or she might act in any manner prejudicial to the objectives or functions of the Centre.
(2) If the Minister is so satisfied, he or she must issue a certificate with respect to such person in which it is certified that such person has successfully undergone a security clearance. 30
'(3) The Director may at any time detennined by the Minister be subjected to a further security screening investigation as Contemplated in subsection (l)(a).
(4) The Minister may withdraw a certificate referred to in subsection (2) if the Minister obtains information from an invlzstigation referred to in subsection (3) which, afi:er evaluation by the Minister, causes the Minister to believe that the Director could be 35 a security risk or could possibly act in any manner prejudicial to the objectives or functions of the Centre.
(5 ) If the certificate referred to in subsection (2) is withdrawn, the Director may not perform any functions of the Centre and the Minister must discharge him or her from the Centre. 40
Funds and financial year of Centre
14. (1) The funds of the Centre consist of- (a) money appropriated annually b y Parliament for the purposes of the Centre; (b) any government grants made to it; and (c) any other money legally acquired by it, provided that the Centre may accept 45
donations only with the prior written approval of the Minister. (2) The financial year of the Centre ends on 31 March in each year.
Audit
15. The Auditor-General must audit and report on the accounts and financial records of the Centre. 50
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Delegation
16. (1) The Director may- (a) delegate, in writing, any of the powers entrusted to the Centre in terms of this
(b) instruct a member of the staff to perform any of the functions assigned to the 5 Act to a member of the staff of the Centre; or
Centre in terms of this Act. (2) A delegation or instruction in terms of subsection (1)- (a) is subject to the limitations or conditions that the Director may impose; and (b) does not divest the Director of the responsibility concerning the exercise of
(3) The Director may confirm, vary or revoke any decision taken by a staff member in consequence of a delegation or instruction in terms of subsection (l), as long as no such variation or revocation of a decision detracts from any rights that may have accrued as a result of the decision.
se1:tion regarded as being a staff member.
the delegated power or the performance of the assigned function. 10
(4) A person seconded to the Centre in te:rms of section 11 (2) is for the purposes of this 15
CHAPTER 2
MONEY LAUNDERIh G ADVISORY COUNCIL
Es'tablishment
17. A Money Laundering Advisory Council is hereby established.
Functions
18. (1) The Council must- (a) on the Minister's request or at its own initiative, advise the Minister on-
(i) policies and best practices 'to identify the proceeds of unlawful activities
(ii) the exercise by the Minister of the powers entrusted to the Minister in
(b) advise the Centre concerning the performance by the Centre of its functions; and
(c) act as a forum in which the Centre, associations representing categories of 30 accountable institutions, organs of state and supervisory bodies can consult one another.
(2) The Centre must provide administrative and secretarial support and sufficient
and to combat money lau dering activities; and 25
terms of this Act;
financial resources for the Council to function effectively.
Calmposition 35
19. (1) The Council consists of the Director and each of the following, namely- the Director-General of the National Treasury;
20
the Commissioner of the South African Poliie Service; the Director-General of the ]Department of Justice and Constitutional Development; 40 the National Director of Public Prosecutions; the Director-General of the National Intelligence Agency; the Director-General of the South African Secret Service; the Governor of the South African Reserve Bank; the Commissioner for the South African Revenue Service; 45 persons representing categories of accountable institutions requested by the Minister to nominate representarives; persons representing supervisory bodies requested by the Minister to nominate representatives; and any other persons or bodies requested by the Minister to nominate 50 representatives.
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Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001 -
(2) The Minister must appoint a member of the Council as the chairperson of the Council. The chairperson of the Council serves as such until the chairperson resigns or until a new chairperson is appointed by the Minister.
(3) The Director and each of the persons referred to in paragraphs (a) to (h) of subsection (1) may appoint a member of his or her staff to represent him or her at any 5 meeting of the Council which he or she i,s unable to attend.
(4) The accountable institutions and supervisory bodies referred to in paragraphs (i) and ( j ) of subsection (1) and the persons and bodies referred to in paragraph (k) of subsection (1) may-
(a) appoint alternates to represent them at any meeting of the Council; 10 (b) change their representatives to the Council when they consider it appropriate
to do so.
M'eetings and procedure
20. (1) The chairperson of the Council may call a meeting of the Council, but must call a meeting if the Minister so requests. 15
(2) The Council- (a) must meet regularly, but not less than once per year; (b) may determine its own procedures at meetings; (c) may request advice and assistance from such persons as it considers necessary
(d) may appoint committees from its members to assist it in the performance of its
1:3) A committee appointed in terms of subsection (l)(d) may co-opt any person who is not a member of the Council as a member of the committee, whether for a particular period or in relation to a particular matter dealt with by that committee. 25
1(4) When a provision of this Act requires consultation with the Council on any specific matter before a decision may be taken on that matter and it is not feasible to call a meeting of the Council, that provision is satisfied if-
(a) a proposed decision on that matter is circulated in writing to the members of
(b) an opportunity is given to each of them to comment in writing on the proposed
to assist it to perform its functions; 20
functions.
the Council; and 30
decision within a reasonable time.
CHAPTER 3
MONEY LAUNDERING CONTROL MEASURES
P:wt 1 35
Duty to identify clients
Identification of clients and other persons
2!1. (1) An accountable institution may not establish a business relationship or conclude a single transaction with a client unless the accountable institution has taken the prescribed steps- 40
(a) to establish and verify the identity of the client; (b) if the client is acting on behalf of another person, to establish and verify-
(i) the identity of that other person; and (ii) the client's authority to establish the business relationship or to conclude
the single transaction behalf of that other person; and 45 (c) if another person is acting on behalf of the client, to establish and verify-
(i) the identity of that other.person; and (ii) that other person's authority to act on behalf of the client.
(2) If an accountable institution had established a business relationship with a client before this Act took effect, the accountable institution may not conclude a transaction in 50
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Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001
the course of that business relationship, unless the accountable institution has taken the prescribed steps-
to establish and verify the identity of the client; if another person acted on behalf of the client in establishing the business relationship, to establish and verify- 5 (i) the identity of that other person; and
(ii) that other person’s authoriry to act on behalf of the client; if the client acted on behalf of another person in establishing the business relationship, to establish and verify- (i) the identity of that other pers n; and 10
(ii) the client’s authority to act on behalf of that other person; and to trace all accounts at that accountable institution that are involved in transactions concluded in the course of that business relationship.
Part 2
Duty to keep record 15
Record to be kept of business relations hips and transactions
22. (1) Whenever an accountable institution establishes a business relationship or concludes a transaction with a client, whether the transaction is a single transaction or concluded in the course of a business relationship which that accountable institution has with the cli nt, the accountable institution must keep record of- 20
the identity of the client; if the client is acting on behalf ‘of another person- (i) the identity of the person on whose behalf the client is acting; and
(ii) the client’s authority to act on behalf of that other person; if another person is acting on behalf of the client- 25 (i) the identity of that other person; and
(ii) that other person’s authority to act on behalf of the client; the manner in which the identity of the persons referred to in paragraphs (a), (b) and (c) was established; the nature of that business relationship or transaction; 30 in the case of a transaction- (i) the amount involved; and
(ii) the parties to that transaction; all accounts that are involved in- (i) transactions concluded by that accountable institution in the course of 35
that business relationship; and (ii) that single transaction; the name of the person who obtained the information referred to in paragraphs (a), (b) and (c) on behalf of the accountable institution; and any document or copy of a document obtained by the accountable institution 40 in order to verify a person’s identity in terms of section 21( 1) or (2).
112) Records kept in terms of subsection (1) may be kept in electronic form.
Period for which records must be kept
23. An accountable institution must keep the records referred to in section 22 which rehte to- 45
(a) the establishment of a business relationship, for at least five years from the
(b) a transaction which is concluded, for at least five years from the date on which date on which the business relationship is terminated;
that transaction is concluded.
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Records may be kept by third parties
24. (1) The duties imposed by section 22 on an accountable institution to keep record of the matters specified in that section may be performed by a third party on behalf of the accountable institution as long as the accountable institution has free and easy access to the records. 5
(2) If a third party referred to in subsection (1) fails to properly comply with the requirements of section 22 on behalf 0:' the accountable institution concerned, the accountable institution is liable for that fdure .
(3) If an accountable institution appoints a third party to perform the duties imposed on it by section 22, the accountable institution must forthwith provide the Centre with 10 the prescribed particulars regarding the third party.
Adimissibility of records
25. A record kept in terms of section 22 (or section 24, or a certified extract of any such record, or a certified printout of any exlract of an electronic record, is on its mere production in a matter before a court admissible as evidence of any fact contained in it 15 of which direct oral evidence would be admissible.
Centre's access to records
26. (1) An authorised representative of the Centre has access during ordinary working holm to any records kept by or on behalf of an accountable institution in terms of section 22 or section 24, and may examine, make extracts from or copies of, any such records. 20
(2) The authorised representative of the Centre may, except in the case of records which the public is entitled to have access to, exercise the powers mentioned in subsection (1) only by virtue of a warrant issued in chambers by a magistrate or regional magistrate or judge of an area of jurisdiction within which the records or any of them are kept, or within which the accountable insfitution conducts bu iness. 25
(3) A warrant may only be issued if it appears to the judge, magistrate or regional magistrate from information on oath or affirmation that there are reasonable grounds to believe that the records referred to in subsection (1) may assist the Centre to identify the proceeds of unlawful activities or to combat money laundering activities.
iiccess to the relevant records as the judge, magistrate or regional magistrate may deem appropriate.
( 5 ) An accountable institution must without delay give to an authorised representative of the Centre all reasonable assistance n cessary to enable that representative to exercise the powers mentioned in ubsection (1). 35
(4) A warrant issued in terms of this section may contain such conditions regarding 30
Part 3
Reporting duties and access to information
Accountable institutions to advise Centre of clients
2,7. If an authorised representative of the Centre requests an accountable institution to advise whether- 40
(a) a specified person is or has been a client of the accountable institution; (b) a specified person is acting or has acted on behalf of any client of the
(c) a client of the accountable institution is acting or has acted for a specified accountable institution; or
person, 45 the accountable institution must inform the Centre accordingly.
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Cash transactions above prescribed h i t
28. An accountable institution and a reporting institution must, within the prescribed period, report to the Centre the pres'zribed particulars concerning a transaction concluded with a client if in terms of the transaction an amount of cash in excess of the prescribed amount-
(a) is paid by the accountable institution or reporting institution to the client, or to a person acting on behalf of the client, or to a person on whose behalf the client is acting; or
(b) is received by the accountable institution or reporting institution from the client, or from a person acting on behalf of the client, or from a person on whose behalf the client is acting.
Suspicious and unusual transactions
29. (1) A person who carries on a businl:ss or is in charge of or manages a business or
(a) the business has received or is about to receive the proceeds of unlawful
(b) a transaction or series of transactions to which the business is a party-
who is employed by a business and who knows or suspects that-
activities;
(i) facilitated or is likely to facilitate the transfer of the proceeds of unlawful
(ii) has no apparent business cmr lawful purpose; (iii) is conducted for the purpose of avoiding giving rise to a reporting duty
under this Act; or (iv) may be relevant to the investigation of an evasion or attempted evasion
of a duty to pay any tax, duty or levy imposed by legislation administered by the Commissioner for the South African Revenue Service; or
(c) the business has been used or is about to be used in any way for money
must, within the prescribed period after the knowledge was acquired or the suspicion arose, report to the Centre the grounds for the knowledge or suspicion and the prescribed particulars concerning the transaction or series of transactions.
8:2) A person who carries on a business or is in charge of or manages a business or who is employed by a business and who knows or suspects that a transaction or a series of transactions about which enquiries are made, may, if that transaction or those transactions had been concluded, have caused any of the consequences referred to in suhection (l)(a), (b) or (c), must, within the prescribed period after the knowledge was acquired or the suspicion arose, report to the Centre the grounds for the knowledge or sus,picion and the prescribed particulars concerning the transaction or series of traasactions.
(3) No person who made or must make a report in terms of this section may disclose that fact or any information regarding the contents of any such report to any other per son, including the person in respect of whom the report is or must be made, otherwise than-
(a) within the scope of the powers and duties of that person in terms of any
(b) for the purpose of carrying out the provisions of this Act; (c) for the purpose of legal proceedings, including any proceedings before a judge
(d) in terms of an order of court.
activities;
laundering purposes,
legislation;
in chambers; or
(4) No person who knows or suspects that a report has been or is to be made in terms of Ibis section may disclose that knowledge or suspicion or any information regarding the contents or suspected contents of any such report to any other person, including the person in respect of whom the report is or is to be made, otherwise than-
(a ) within the scope of that person's :powers and duties in terms of any legislation; (b) for the purpose of carrying out the provisions of this Act; (c) for the purpose of legal proceedings, including any proceedings before a judge
(d) in terms of an order of court. in chambers; or
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Conveyance of cash to or from Republic
30. (1) A person intending to convey an amount of cash in excess of the prescribed amount to or from the Republic must, before that person conveys the cash into or out of the Republic, report the prescribed particulars concerning that conveyance to a person au:horised by the Minister for this purpos,e. 5
(2) A person authorised in terms of subsection (1) must without delay send a copy of thc: report to the Centre.
Electronic transfers of money to or from Republic
.31. If an accountable institution through electronic transfer sends money in excess of a Firescribed amount out of the Republic or receives money in excess of a prescribed 10 amount from outside the Republic on behalf, or on the instruction, of another person, it must, within the prescribed period after the money was transferred, report the transfer, together with the prescribed particulars concerning the transfer, to the Centre.
Reporting procedures and furnishing of additional information
32. (1) A report in terns of section 28,29 or 31 to the Centre and a report in terms of 15 section 30(1) to a person authorised by the Minister must be made in the prescribed manner.
(2) The Centre, or an investigating authority acting with the permission of the Centre or under the authority of an authorised offi8cer, may request an accountable institution, a reporting institution or any other person that has made a report in erms of section 28,29 20 or 31 to furnish the Centre or that investigating authority with such additional information concerning the report and the grounds for the report as the Centre or the investigating authority may reasonably require for the performance by it of its functions.
(3) When an institution or a person refixred to in subsection (2) receives a request under that subsection, that institution or p m o n must furnish the Centre without delay 25 with such additional information concerning the report and the grounds for the report as thal: institution or person may have available.
Continuation of transactions
33. An accountable institution, reporting institution or person required to make a report to the Centre in terms of section 28 or 29, may continue with and carry out the 30 trarsaction in respect of which the report is required to be made unless the Centre directs the accountable institution, reporting institution or person in terms of section 34 not to proceed with the transaction.
Intervention by Centre
34. (1) If the Centre, after consulting an accountable institution, a reporting institution 35 or a person required to make a report in terms of section 28 or 29, has reasonable grounds to suspect that a transaction or a prlsposed transaction may involve the proceeds of unlawful activities or may constitute money laundering or may constitute a transaction contemplated in section 29(l)(.b), it may direct the accountable institution, reporting institution or person in writing not to proceed with the carrying out of that 40 transaction or proposed transaction or any other transaction in respect of the funds affected by that transaction or proposed transaction for a period as may be determined by the Centre, which may not be more than five days, in order to allow the Centre-
(a) to make the necessary inquiries concerning the transaction; and (b) if the Centre deems it appropriate, to inform and advise an investigating 45
authority or the National Director of Public Prosecutions.
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(2) For the purposes of calculating the period of five days in subsection (l), Saturdays, Sundays and proclaimed public holidays ;nust not be taken into account.
(3) Subsection (1) does not apply to the carrying out of a transaction to which the rules of an exchange licensed in terms of the Stock Exchanges Control Act, 1985, or the Financial Markets Control Act, 1989, apply.
Monitoring orders
35. (1) A judge designated by the hlinister of Justice for the purposes of the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992), may, upon written application by the Centre, order an accountable institution to report to the Centre, on such terms and in such confidential manner as may be specified in the order, all transactions concluded by a specified person with the accountable institution or all transactions conducted in respect of a sptxified account or facility at the accountable institution, if there are reasonable ground, to suspect that-
(a) that person has transferred or may transfer the proceeds of unlawful activities to the accountable institution or is using or may use the accountable institution for money laundering purposes or for the purpose of any transaction contemplated in section 29(l)(b); or
(b) that account or other facility h,as received or may receive the proceeds of unlawful activities or is being or may be used for money laundering purposes or for the purpose of any transaction contemplated in section 29( I)@).
(12) An order in terms of subsection (1) lapses after three months unless extended in
(3) A judge referred to in subsection (1) may extend an order issued in terms of
(a) the reasonable grounds for the suspicion on which the order is based still exist; and
(b) the judge is satisfied that the interest of justice is best served by monitoring the person, account or facility referred to in subsection (1) in the manner provided for in this section.
(4) An application referred to in subsection (1) must be heard and an order must be issued without notice to or hearing the person or persons involved in the suspected money laundering activities.
terns of subsection (3).
subsection (1) for further periods not exce.eding three months at a time if-
Information held by supervisory bodies and South African Revenue Service
36. (1) If a supervisory body or the South African Revenue Service knows or suspects tha: an accountable institution, as a result of a transaction concluded by or with the accountable institution, wittingly or unwitlingly has received or is about to receive the proceeds of unlawful activities or has been used or may be used in future for money laundering purposes or for the purpose of any transaction contemplated in section 29(l)(b), it must advise the Centre of that fact and furnish the Centre with all information and any records regarding that knowledge or suspicion which the Centre may reasonably require for the achievement of its objectives.
( 2 ) If the Centre believes that a supervisory body or the South African Revenue Service may have information indicating that an accountable institution, as a result of a transaction concluded by or with the accountable institution, wittingly or unwittingly has received or is about to receive the proc:eeds of unlawful activities or has been used or may be used in future for money laundering purposes or for the purpose of any transaction contemplated 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 supmxvisory body or South African Revenue Service, as the case may be, must do so and, if that belief is confirmed, must furnish the Centre with all information and any records regarding that knowledge or suspicion which the Centre may reasonably require for the achievement of its objectives.
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28 No. 22886 GOVERNMENT GAZETTE, 3 DECEMBER 2001
(3) The Commissioner for the South African Revenue Service and the chief executive officer of a supervisory body may make such reasonable procedural arrangements and impose such reasonable safeguards regarding the furnishing of information referred to in subsections (1) and (2) as the Commissioner or such officer considers appropriate to maintain the confidentiality, if any, of thal: information. 5
37. (1) Subject to subsection (2), no duty of secrecy or confidentiality or any other restriction on the disclosure of information, whether imposed by legislation or arising from the common law or agreement, af€ects compliance by an accountable institution, 10 supervisory body, reporting institution, the South Afncan Revenue Service or any other person with a provision of thls Part.
(2) Subsection (1) does not apply to the common law right to legal professional privilege as between an attorney and the attorney’s client in respect of communications made in confidence between-
(a) the attorney and the attorney’s client for the purposes of legal advice or litigation which is pending or contemplated or which has commenced; or
(b) a third party and an attorney for the purposes of litigation which is pending or contemplated or has commenced.
15
Protection of persons making reports 20
38. (1) No action, whether criminal or civil, lies against an accountable institution, reporting institution, supervisory body, the South African Revenue Service or any other person complying in good faith with a provision of this Part, including any director, employee or other person acting on behalf of such accountable institution, reporting inst:.tution, supervisory body, the South African Revenue Service or such other person. 25
(:!) A person who has made, initiated or contributed to a report in terms of section 28, 29 or 31 or who has furnished additional information concerning such a report or the grounds for such a report in terms ,of a provision of this Part is competent, but not compellable, to give evidence in criminal proceedings arising from the report.
contributed to a report in terms of section 28, 29 or 31 or who has furnished additional infomation concerning such a report or the grounds for such a report in terms of a procision of this Part, or the contents or nature of such additional information or grounds, is admissible as evidence in criminal proceedings unless that person testifies at those proceedings. 35
(S) No evidence concerning the identity of a person who has made, initiated or 30
Adnlissibility as evidence of reports made to Centre
391. A certificate issued by an official of the Centre that information specified in the certificate was reported or sent to the Centre in terms of section 28, 29, 30(2) or 31 is, subject to section 38(3), on its mere production in a matter before a court admissible as evidence of any fact contained in it of which direct oral evidence would be admissible. 40
Access to information held by Centre
40. (1) No person is entitled to information held by the Centre, except- (a) an investigating authority inside the Republic, the South African Revenue
Service and the intelligence services, which may be provided with such information- 45 (i) on the written authority of an authorised officer if the authorised officer
reasonably believes such infolmation is required to investigate suspected unlawful activity; or
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Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001
(ii) at the initiative of the Centre, if the Centre reasonably believes such information is required to investigate suspected unlawful activity;
an entity outside the Republic performing similar functions to those of the Centre, or an investigating authority outside the Republic which may, at the initiative of the Centre or on written request, obtain information which the 5 Centre reasonably believes is re1 evant to the identification of the proceeds of unlawful activities or the combating of money laundering activities or similar offences in the country in which that entity is established; an accountable institution or reporting institution which or any other person who may, at the initiative of the Centre or on written request, be provided with 10 information regarding the steps taken by the Centre in connection with transactions reported by such accountable institution, reporting institution or person, unless the Centre reasonably believes that disclosure to such accountable institution, reporting institution or person of the information requested could- 15 (i) inhibit the achievement of the Centre’s objectives or the performance of
its functions, or the achievement of the objectives or the performance of the functions of another organ of state; or
(ii) prejudice the rights of any person; a supervisory body, which may at the initiative of the Centre or on written 20 request be provided with information which the Centre reasonably believes is relevant to the exercise by that supervisory body of its powers or performance by it of its functions in relation I:O an accountable institution; in terms of an order of a court; or in terms of other national legisl . 25
(2yA request for information contemplated in subsection ( l ) (b) , (c) or (d) must be in writing and must specify the desired information and the purpose for which the information is required.
(3) The Director may make such reasonable procedural arrangements and impose such reasonable safeguards regarding the furnishing of information referred to in 30 subsection (l)(a), (b), (c) or (d) as the Director considers appropriate to maintain the confidentiality of that information. (4) Information held by the Centre may only be provided to an entity referred to in
subsection ( l ) (b) pursuant to a written agreement between the Centre and such entity, or the authority which is responsible for that entity, regulating the exchange of information 35 between the Centre and such entity.
( 5 ) An agreement referred to in subsection (4) does not- (a) take effect until it has been approved in writing by the Minister; (b) permit the Centre to provide any category of information to the entity in
respect of which the agreement is: concluded which that entity is not permitted 40 to provide to the Centre.
(15) A person who obtains information from the Centre may use that information only within the scope of that person’s powers and duties and for the purpose specified in terms of subsection (2).
Protection of confidential information 45
41. No person may disclose confidential information held by or obtained from the
(a) within the scope of that person’s powers and duties in terms of any legislation; (b) for the purpose of carrying out the provisions of this Act; (c) with the permission of the Centr,:; 50 (d) for the purpose of legal proceedings, including any proceedings before a judge
( e ) in terms of an order of court.
Centre except-
in chambers; or
32 No. 22886 GOVERNMENT GAZERE, 3 DECEMBER 2001
Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001 ~ ~~ ~
F’art 4
Measures to promote compliance by accountable institutions
Formulation and implemenlation of internal rules
42. (1) An accountable institution must formulate and implement internal rules conceming- 5
(a) the establishment and verification of the identity of persons whom the
(b) the information of which record must be kept in terms of Part 2 of this
(c) the manner in which and place at which such records must be kept; 10 (d) the steps to be taken to determine when a transaction is reportable to ensure
( e ) such other matters as may be prescribed.
institution must identify in terns of Part 1 of this Chapter;
Chapter;
the institution complies with its duties under this Act; and
(2) Internal rules must comply with the prescribed requirements. (3) An accountable institution must make its internal rules available to each of its 15
(4) An accountable institution must, on request, make a copy of its internal rules employees involved in transactions to which this Act applies.
available to- (a ) the Centre; (b) a supervisory body which performs regulatory or supervisory functions in 20
respect of that accountable institution.
Training and monitoring of compliance!
43. An accountable institution must- (a) provide training to it:; employees, to enable them to comply with the provisions
(b) appoint a person with the responsibility to ensure compliance by- of this Act and the int rnal ules applicable to them; 25
(i) the employees of the accountable institution with the provisions of this
(ii) the accountable institution with its obligations under this Act. Act and the internal rules a.pplicable to them; and
Part 5 30
Referral and supervision
Referral of suspected offences to investigating authorities and other public bodies
44. If the Centre in the performance of it,s functions has reasonable grounds to suspect that an accountable institution, or any othtx person other than a supervisory body who is subject to the provisions of this Act, has contravened or failed to comply with any 35 provision of this Act or any rule or guideline applicable to that accountable institution or person which facilitates compliance with this Act, it may, if it considers it appropriate to do so, refer the matter to-
(a) a relevant investigating authority; or (b) an appropriate supenisory body or other public body or authority dected by 40
it, together with any recommendation the Centre considers appropriate.
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Responsibility for supervision of accountable institutions
45. (1) Each supervisory body is responsible for supervising compliance with the provisions of this Chapter by each accountable institution regulated or supervised by it.
(2) When the Centre refers a matter to a supervisory body or other public body or authority in terms of section 44, that supelvisory body or other public body or authority 5 must investigate the matter and may, after consultation with the Centre, take such steps within the scope of its powers as it considers appropriate to remedy the matter.
(3) Should a supervisory body or other public body or authority to which a suspected contravention or failure is referred in te rm of section 44 fail to take adequate steps to ensure that the suspected contravention ceases or the suspected failure is rectified, the 10 Centre may, after consultation with the supervisory body or other public body or authority concerned, take such steps within the scope of its powers as the Centre considers appropriate to remedy the matter.
CHAPTER 4
OFFENCES A.ND PENALTIES 15
Failure to identify persons
46. (1) An accountable institution that performs any act to give effect to a business relationship or single transaction in contravention of section 21(1) is guilty of an offence.
section 21(2) is guilty of an offence. (2) An accountable institution that concludes any transaction in contravention of 20
Failure to keep records
47. An accountable institution that fails tc+- (a) keep record of information in terms of section 22(1); or (b) keep such records in accordance with section 23 or section 24( 1); or 25 (c) comply with the provisions of section 24(3),
is guilty of an offence.
Destroying or tampering with records
48. Any person who wilfully tampers with a record kept in terms of section 22 or section 24(1), or wilfully destroys such a record, otherwise than in accordance with 30 section 23, is guilty of an offence.
Failure to give assistance
49. An accountable institution that fails to give assistance to a representative of the Centre in accordance with section 26(5), is guilty of an offence.
Failure to advise Centr of client 35
50. An accountable institution that fails to inform the Centre in accordance with section 27, is guilty of an offence.
Failure to report cash transactions
51. An accountable institution or reporting institution that fails, within the prescribed period, to report to the Centre the prescribed information in respect of a cash transaction 40 in accordance with section 28, is guilty of an offence.
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Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001 ~ ~ ~~~
Failure to report suspicious or unusual transactions
52. (1) Any person who fails, within the: prescribed period, to report to the Centre the prescribed information in respect of a suspicious or unusual transaction or series of transactions or enquiry in accordance with section 29( 1) or (2), is guilty of an offence.
or suspected that any of the facts referred to in section 29(l)(a), (6 ) or (c) or section 29(2) exists, and who negligently fails to report the prescribed information in respect of a suspicious or unusual transaction or series of transactions or enquiry, is guilty of an offence.
(2) Any person referred to in section 29( 1) or (2) who reasonably ought to have known 5
Unauthorised disclosure 10
53. (1) Any person referred to in section 29(3) who discloses a fact or information contemplated in that section, otherwise than in the circumstances or for the purposes authorised in that section, is guilty of an offence.
( 2 ) Any person referred to in section 29(4) who discloses a knowledge or suspicion or any information contemplated in that section, otherwise than in the circumstances and 15 for the purposes authorised in that section, is guilty of an offence.
Failure to report conveyance of cash in1.o or out of Republic
54. Any person who wilfully fails to report the conveyance of cash into or out of the Republic in accordance with section 30( l), is guilty of an offence.
Failure to send report to Centre 20
55. A person referred to in rsection 30(2) who fails to send a report regarding the conveyance of cash to the Centre in accordance with that section, is guilty of an offence.
Failure to report electronic transfers
56, An accountable institution that fails to report to the Centre the prescribed information in respect of an electronic transfer of money in accordance with section 3 1, 25 is guilty of an offence.
Failure to comply with request
57. An accountable institution, reporting, institution or any other person that fails to comply with a request made by r.he Centre or an investigating authority acting under the authority of an authorised officea in terms of section 32(2), is guilty of an offence. 30
Failure to comply with direction by Centre
58. An accountable institution that fails 'to comply with a direction by the Centre in terms of section 34(1), is guilty of an offence.
Failure to comply with monitoring order
59. An accountable institution that fails to comply with an order by a judge in 35 accordance with section 35, is guilty of an offence.
Misuse of information
60. (1) Any person who- (a) discloses confidential information held by or obtained from the Centre
(b) wilfully destroys or in any other way tampers with information kept by the
(c) uses information obtained from the Centre otherwise than in accordance
otherwise an in accordance with secti n 40; 40
Centre for the purposes of this Act; or
with-
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(i) any arrangements or safeguards made or imposed by the Director in
(ii) section 40(6), terms of section 40(3); or
is guilty of an offence.
suspected- (2) Any person who knows, suspec1.s or ought reasonably to have known or 5
(a) that information has been disclosed to the Centre; or (6) that an investigation is being, or may be, conducted as a result of information
that has been or is to be disclosed to the Centre, and who directly or indirectly alerts, or brings information to the attention of, another 10 person which will or is likely to prejudice such an investigation, is guilty of an offence.
Failure to formulate and implement internal rules
161. An accountable institution that fails to- (a) formulate and implement internal rules in accordance with section 42( 1) and
(b) make the internal rules available to its employees in accordance with section
(c) make a copy of its internal rules available to the Centre or a supervisory body
is guilty of an offence. 20
Failure to provide training or appoint compliance officer
(2) ; 15
42(3); or
in terms of section 42(4),
62. An accountable institution that fails to- (a) provide training to its employees in accordance with section 43(a); or (b) appoint the person referred to in section 43(b),
is guilty of an offence. 25
Obstructing of official in performance of functions
63. Any person who obstructs, hinders or threatens an official or representative of the Centre in the performance of their duties or the exercise of their powers in terms of this Ac.:, is guilty of an offence.
Conducting transactions to avoid reporting duties 30
64. Any person who conducts, or causes to be conducted, two or more transactions with the purpose, in whole or in part, of atoiding giving rise to a reporting duty under thi5 Act, is guilty of an offence.
Un.authorised access to computer system or application or data
615. (1) Any person who, without authority to do so, wilfully accesses or causes any 35 other person to access any computer system that belongs to, or is under the control of, the Centre, or any application or data held in such a computer system, is guilty of an offence.
(2) Any person who, without authority to do so, wilfully causes any computer system thal belongs to, or is under the control of, the Centre, to perform or fail to perform a 40 function, is guilty of an offence.
Unauthorised modification of contents of computer system
66. Any person who, without authority ':o do so, wilfully causes a computer system that belongs to, or is under the control of, the Centre, or any application or data held in such a computer system, to be modified, destroyed, erased or the operation or reliability 45 of such a computer system, application or data to be otherwise impaired, is guilty of an offence.
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Definitions
67. For the purposes of sections 65 and 66- “access” in relation to an application or data means rendering that application or data, by whatever means, in a form that would enable a person, at the time when it is so rendered or subsequently, to take account of that application or 5 data, and includes using the application or data or having it output from the computer system in which it is held in a displayed or printed form or to a storage medium or by means of any output device, whether attached to the computer system in which the application or data are held or not; “application” means a set of instructions that, when executed in a computer 10 system, causes a computer system to perform a function; “computer system” means an electronic, magnetic, optical, electrochemical or other data processing device, including the physical components thereof, and any removable storage medium that is for the time being therein or connected thereto, or a group of such interconnected or related devices, one or 15 more of which is capable of- (i) containing data; or
(ii) performing a logical, arithmetj c or any other function in relation to data; “data” means any representation of information, knowledge, facts or concepts, capable of being processed in a computer system. 20
A I
Penalties
68. (1) A person convicted of an offence mentioned in this Chapter, other than an offence mentioned in subsection (2), is liable to imprisonment for a period not exceeding 15 y e m or to a fine not exceeding R10 000 000.
imprisonment for a period not exceeding five years or to a fine not exceeding R1000 000.
(2) A person convicted of an offence menrioned in section 55, 61 or 62 is liable to 25
Defences
69. If a person who is an employee, director or trustee of, or a partner in, an accountable institution is charged with committing an offence under section 52, that 30 person may raise as a defence the fact that he: or she had-
( t z ) complied with the applicable obligations in terrns of the internal rules relating
(17) reported the matter to the person charged with the responsibility of ensuring
(c) reported the matter to his or her superior, if any, if-
to the reporting of information of the accountable institution; or
compliance by the accountable institution with its duties under this Act; or 35
(i) the accountable institution :had not appointed such a person or
(ii) the accountable institution had not complied with its obligations in
(iii) the internal rules were not applicable to that person.
established such rules; or
section 42(3) in respect of that person; or 40
Search, seizure and forfeiture
70. t(1) A police official or person authorised by the Minister to receive a report under section 30(1), who has reasonable grounds to suspect that an offence under section 54 has been or is about to be committed, may at any time search any person, container or 45 other thing in which any cash contemplated in section 30( 1) is suspected to be found.
(2) A police official or person authorised by the Minister referred to in subsection (1) may seize any cash contemplated in section 30(1).
(3) Any cash seized under subsection (2) must be returned to the person from whom it was seized as soon as possible- 50
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(a ) after the expiry of a period of 90 days from the date of the seizure, unless, before the expiry of that period- (i) that person has been arrested. without a warrant of arrest being issued;
(ii) a warrant for the arrest of that person has been issued; or (iii) a summons has been issued for that person to appear in court, in connection with the suspected (commission of an offence under section 54 in respect of that cash or any portion of it;
(b) after the expiry of a period of 90 days from the date of the seizure, unless, before the expiry of that period, an application for a preservation order in terms of section 38 of the Prevention Act in respect of that cash is pending before the High Court;
(c) if that person is acquitted on a charge of committing an offence under section 54; or
(d) if a forfeiture order in terms of section 50 of the Prevention Act is not made in respect of that cash.
(4: Whenever any person is convicted (of an offence under section 54 the court conv!.cting that person must, in addition to any punishment which that court may impose in respect of the offence, declare any cash contemplated in section 30(1) that was seized under subsection (2) , or is in the possession or custody or under the control of the conv~cted person, to be forfeited to the State.
( 5 ) Whenever a person is Convicted of an offence under section 64 the court convj cting that person must, in addition to any punishment which that court may impose in respect of the offence, declare any property in respect of which those transactions were conducted to be forfeited to the State.
(6) A declaration of forfeiture shall not affect any interest which any person other than the convicted person may have in the cash or property concerned if that person proves-
('a) that he or she acquired the interest in that cash or property in good faith; and (b) that he or she did not know that the cash or property in question was-
(i) conveyed as contemplated in section 30(1) or that he or she could not
(ii) used in the transactions contemplated in section 64 or that he or she could prevent the cash from being SO conveyed; or
not prevent the property from being so used, as the case may be.
(7) Subject to subsection (6), the court cc'ncerned or, if the judge or judicial officer concerned is not available, any judge or judicial officer of that court, may at any time within a period of three years from the date of the declaration of forfeiture, on the application of any person other than the convicted person who claims that he or she has any interest in the cash in question, inquire into and determine any such interest.
(8) Subject to subsection (6), if a court referred to in subsection (7) finds that- (a) the cash or property in question belonged to the applicant at the time of the
forfeiture, the court must set aside the declaration of forfeiture in question and direct that the cash or property be returned to the applicant or, if the State has disposed of it, direct that the applicant be compensated by the State in an amount equal to the amount of cash or the value of the property forfeited; or
(b) the applicant had an interest in the cash or property in question at the time of the forfeiture, the court must direct that the applicant be compensated by the State in an amount equal to the value of his or her interest in the cash or property.
(9) Any person aggrieved by a determination made by a court under subsection (8), may appeal against the determination as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against the conviction as a result of which the declaration of forfeiture was made, or against a sentence imposed as a result of suc.h conviction.
(1 O:I In order to make a declaration of forjreiture or to determine any interest under subsection (8), the court may refer to the evidence and proceedings at the trial or hear such further evidence, either orally or by affidavit, as it may deem fit.
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Jurisdiction of courts
71. (1) A regional court has penal jurisdiction to impose any penalty mentioned in section 68(1), even though that penalty may exceed the penal jurisdiction of that court.
(2) A magistrate’s court has penal jurisdiction to impose any penalty mentioned in section 68(2), even though that penalty may exceed the penal jurisdiction of that court. 5
(3) A magistrate’s court or regional court has jurisdiction to make any order of forreiture referred to in section 70, even though the amount forfeitable under that order may exceed the civil jurisdiction of a magistrate’s court or regional court.
CHAI?TER 5
MISCELLANEOUS 10
Act not to limit powers of investigating authorities or supervisory bodies
72. This Act does not detract from- (a) an investigating authority’s powers in terms of other legislation to obtain
(b) a supervisory body’s duties or powers in relation to the entities supervised or 15 information for the purpose of criminal investigations; or
regulated by it.
Amendment of list of accountable institutions
7’3. (1) The Minister may, by notice in the Gazette, amend the list of accountable institutions in Schedule 1 to-
(a) add to the list any person or category of persons if the Minister reasonably 20 believes that that person or category of persons is used, or is likely to be used in future, for money laundering ]?urposes;
(b ) delete any institution or category of institutions from the list if the Minister reasonably believes that that institution or category of institutions is not being used, and is not likely to be used in the future, for money laundering purposes; 25 or
(c) make technical changes to the list. (2) Before the Minister amends Schedu1.e 1 in terms of subsection (l)(a) or (b), the
Minister must consult the Council and the Centre, and- (a) if only one person or institution will be affected by the proposed amendment, 30
give that person or institution at least 30 days’ written notice to submit written representations to the Minister; or
(b) if a category of persons or institutions will be affected by the proposed amendment, by notice in the Gazette give persons or institutions belonging to that category at least 60 days’ written notice to submit written representations 35 to the Minister.
(3) Any addition to or deletion from the :list of accountable institutions in Schedule 1 in tcrms of subsection (l)(a) or (6) must, before publication in the Gazette, be approved by I’arliament.
Exemptions for accountable institutions 40
71. (1) The Minister may, after consulting the Council and the Centre, and on conditions and for a period determined by the Minister, exempt from compliance with-
(a) any of the provisions of this Act- (i) a person;
(ii) an accountable institution; cIr 45 (iii) a category of persons or accountable institutions;
(b) any or all of the provisions of this Act, a person or category of persons or an accountable institution or category of accountable institutions in respect of any one or more categories of transactions.
46 No. 22886 GOVERNMENT GAZETIE. 3 DECEMBER 2001
Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001
(2) Any exemption referred to in subsection (1)- (a) must be by notice in the Gazette and may be withdrawn or amended by the
(b) must be tabled in Parliament before being published in the Gazette. Minister, after consulting with the Council and the Centre;
Amendment of list of supervisory bodies 5
75. (1) The Minister may, by notice in the Gazette, amend the list of supervisory
(a) add to the list any entity or functionary which performs supervisory or regulatory functions in relation ‘to any category of accountable institutions;
(b) delete any supervisory body from the list if that supervisory body no longer 10 performs supervisory or regulatory functions in relation to any category of accountable institutions; or
bodies in Schedule 2 to-
(c) make technical changes to the list. (2) Before the Minister amends Schedule 2 in terms of subsection (I)(a) or (b), the
Minister must consult the Council and the Centre, and give the entity or functionary 15 concerned, or the supervisory body concerned, as the case may be, at least 60 days’ written notice to submit written representations to the Minister.
(3) Any addition to or deletion from the list of supervisory bodies in Schedule 2 in terms of subsection (l)(a) or (b) must, befclre publication in the Gazette, be approved by Parliament. 20
Amendment of list of reporting institutions
76. (1) The Minister may, by notice in the Gazette, amend the list of reporting
(a) add to the list any person or category of persons if the Minister reasonably believes that the person or category of persons is used, or is likely to be used 25 in future, for qoney laundering purposes but it is not appropriate to impose on such person or category of persons the duties which apply to an accountable institution under this Act;
(i) the Minister reasonably believes that the person or category of persons is 30 not being used, and is not likely to be used in the future, for money laundering purposes; or
(ii) the person or category of persons is to be added to the list of accountable institutions; or
(c) make technical changes to the 1i:st. 35
institutions in Schedule 3 t o -
(b) delete any person or category of persons from the list if-
( 2 ) Before the Minister amends Schedule 3 in terms of subsection (l)(a) or (b), the
(a) if only one person will be affected by the proposed amendment, give the person at least 30 days’ written notice to submit written representations to the Minister; or 40
(b) if a category of persons will be afl’ected by the proposed amendment, by notice in the Gazette give persons belonging to that category at least 60 days’ written notice to submit written representations to the Minister.
(3) Any addition to or deletion from the list of reporting institutions in Schedule 3 in terms of subsection (l)(a) or (b) must, before publication in the Gazette, be approved by 45 Parliament.
Regulations
Minister must consult the Centre and the Council, and-
77. (1) The Minister, after consulting the Council and the Centre, may make, repeal and amend regulations conceming-
(a) any matter that may be prescribed in terms of this Act; and 50 (b) any other matter which is necessary or expedient to prescribe to promote the
objectives of this Act.
48 No. 22886 GOVERNMENT GAZElTE, 3 DECEMBER 2001
Act No. 38,2001 FINANCIAL INTELLIGEJNCE CENTRE ACT, 2001
(2) Regulations in terms of subsection (1) may- (a) differ for different accountable institutions, reporting institutions, persons,
categories of accountable institutions, reporting institutions and persons and different categories O F transactions;
(b) be limited to a particxlar accountable institution or reporting institution or 5 person or category of accountable institutions or reporting institutions or persons or a particular category (of transactions; and
(c) for a contravention of or failure to comply with any specific regulation, prescribe imprisonment for a period not exceeding six months or a fine not exceeding RlOO 000. 10
(3) Regulations in terms of subsection (1) must be reviewed by the Council within two years after being published in the Gozette and thereafter at such intervals as the Council deems appropriate.
(4) The Minister must table regulations, repeals and amendments made under subsection (1) in Parliament before publiciition in the Gazette. 15
Indemnity
78. The Minister, the Centre or an employee or representative of the Centre, or any other person performing a function or exercising a power in terms of this Act, is not liable for anything done in good faith in terms of or in furthering the objectives of this Act. 20
Amendment of laws
79. The Acts mentioned in Schedule 4 are hereby amended to the extent set out in Schedule 4.
Status of footnotes
80. The footnotes in this Act have been inserted only for ease of reference to relevant 25 provisions of the Prevention Act. They are not part of this Act. They do not have the force of law.
Transitional arrangements
81. (1) Until the date refened to in section 82(2), the person designated for the purposes of section 7 of the Prevention Act will be deemed to have been duly designated 30 and will continue to hold office as if this Act had not been passed.
( 2 ) All proceedings in relation to an offence in terms of section 7(7) of the Prevention Act that were instituted before the date on which section 79 of this Act takes effect and that are pending before any court of law or reviewing authority on that date, must be dealt with as if this Act had not been passl d. 35
(3) An investigation or proslecution or other legal proceeding in respect of conduct which would have constituted an offence under section 7(7) of the Prevention Act and which occurred after the commencement of that Act but before section 79 of this Act takes effect, may be instituted ,and continued as if this Act had not been passed.
Short title and commencement 40
82. (1) This Act is called the Financial Intelligence Centre Act, 2001, and takes effect
(2 ) Despite subsection (1)- on a date fixed by the President by proclamation in the Gazette.
(a) section 79 does not take effect before the date on which section 29 takes effect;
(b) section 21(2) takes effect one year after section 21(1) takes effect. and 45
50 No. 22886 GOVERNMENT GAZETTE. 3 DECEMBER 2001
Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT, 2001
SCHEDULE 1
LIST OF ACCOUNTABLE INSTITUTIONS
1. 2.
3. 4.
5.
6.
7. 8.
9.
10. 11.
12.
13.
14.
15.
16. 17.
18.
19.
An attorney as defined in the Attorneys Act, 1979 (Act 53 of 1979). A board of executors or a trust colnpany or any other person that invests, keeps in safe custody, controls or administers trust property within the meaning of the Trust Property Control Act, 1988 (Act 57 of 1988). An estate agent as defined in the Estate Agents Act, 1976 (Act 112 of 1976). A financial instrument: trader as defined in the Financial Markets Control Act, 1989 (Act 55 of 1989). A management company registered in terms of the Unit Trusts Control Act, 1981 (Act 54 of 1981). A person who carries on the “business of a bank” as defined in the Banks Act, 1990 (Act 94 of 1990). A mutual bank as defined in the Mutual Banks Act, 1993 (Act 124 of 1993). A person who carries on a “long-term insurance business” as defined in the Long-Term Insurance Act, 1998 (Act 52 of 1998), including an insurance broker and an agent of an insurer. A person who carries on a business in respect of which a gambling licence is required to be issued by a provincial licensing authority. A person who carries on the business of dealing in foreign exchange. A person who carries on the business of lending money against the security of securities. A person who carries on the business of rendering investment advice or investment broking services, including a public accountant as defined in the Public Accountants artd Auditors Act, 1991 (Act 80 of 1991), who carries on such a business. A person who issues, sells or redeems travellers’ cheques, money orders or similar instruments. The Postbank referred. to in section 51 of the Postal Services Act, 1998 (Act 124 of 1998). A member of a stock exchange licensed under the Stock Exchanges Control Act, 1985 (Act 1 of 1985). The Ithala Development Finance Corporation Limited. A person who has berm approved or who falls within a category of persons approved by the Regktrar of Stock Exchanges in terms of section 4 (1) (a) of the Stock Exchanges Control Act, 1985 (Act 1 of 1985). A person who has been approved or who falls within a category of persons approved by the Registrar of Financial Markets in terms of section 5 (1) (a) of the Financial Markets Control Act, 1989 (Act 55 of 1989). A person who carries on the business of a money remitter.
52 No. 22886 GOVERNMENT GAZETTE, 3 DECEMBER 2001
Act No. 38,2001 FINANCIAL. INTELLIGENCE CENTRE ACT, 2001
1.
2.
3.
4.
5.
6.
7. 8.
1. 2.
SCHE,DULE 2
LIST OF SUPEELVISORY BODIES
The Financial Services Board established by the Financial Services Board Act, 1990 (Act 97 of 1990). The South African Reserve Bank as defined in the South African Reserve Bank Act, 1989 (Act 90 of 1989). The Registrar of Companies as defined in the Companies Act, 1973 (Act 61 of 1973). The Estate Agents Board established in terms of the Estate Agents Act, 1976 (Act 112 of 1976). The Public Accountants and Audtors Board established in terms of the Public Accountants and Auditors Act, 1991 (Act 80 of 1991). The National Gambling Board established in terms of the National Gambling Act, 1996 (Act 33 of 1996). The JSE Securities Exchange South Africa. The Law Society of South Africa.
SCHE,DULE 3
LIST OF REPORTING INSTITUTIONS
A person who carries on the business of dealing in motor vehicles. A person who carries on the business of dealing in Kruger rands.
54 No. 22886 GOVERNMENT GAZETTE, 3 DECEMBER 2001
Act No. 38,2001 FINANCIAL INTELLIGENCE CENTRE ACT. 2001
SCHEDULE 4
AMENDMENT OF SECTIONS OF PREVENTION OF ORGANISED CRIME ACT, 1998 (ACT 121 OF 1998)
1. The repeal of section 7. 2. The substitution for section 7A of the following section:
Defence
7A. (1) If a person is charged with committing an offence under section 2( l)(a) or (b), 4, 5 or 6, that person may raise as a defence the fact that he or she had reported a knowledge or suspicion in terms of section 29 of the Financial Intelligence Centre Act, 2001.
(2) If a person who is an employee of an accountable institution as defined in the Financial Intelligence Centre Act, 2001, is charged with committing an offence under section 2(l)(a) or (b), 4, 5 or 6, that person may also raise as a defence that fact that he or she had- (a) complied with the applicable obligations in terms of the internal rules
relating to the reporting of information of the accountable institution; or
(b) reported the matter to the person charged with the responsibility of ensuring compliance by the accountable institution with its duties under that Act; or
(i) the accountable institution had not appointed such a person or
(ii) the accountable insi.itution had not complied with its obligations
(iii) those rules were not applicable to that person.
(c) reported a suspicion to tis or her superior, if any, if-
established such rules;
in section 42(3) of that Act in respect of that person; or
3. The amendment of section 8 by the deletion of subsection (2).
4. The amendment of section 77- 3.1 by the deletion from subsection (1) of paragraph (b); and 3.2 by the deletion from subsection (1) of paragraph (c).
AMENDMENT OF PROMOTION OF ACCESS TO INFORMATION ACT, 2000 (ACT 2 OF 2000)
The amendment of Part 1 of the Schedule by the addition of the following item:
“Act 38 of 2001 Financial Intelligence Centre Act Section 36”