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(MINISTER OF FINANCE)

[B - 2000]

_____________________________________________________________________

070800se

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

Section

Chapter 1 Financial Intelligence Centre 2 - 13

Chapter 2 Money Laundering Advisory Council 14 - 17

Chapter 3 Accountable institutions and supervisory bodies 18 - 20

Chapter 4 Money laundering control measures 21 - 42

Chapter 5 Enforcement of this Act 43 - 50

Chapter 6 Miscellaneous 51 - 56

Schedule 1 List of accountable institutions

Schedule 2 List of supervisory bodies

Optional clause: Schedule 2A List of reporting institutions

Schedule 3 Amendments to sections of the Prevention Act

1. (1) In this Act, unless the context indicates otherwise—

1. an intelligence service authorised by the Director General of that service to act under this Act;

2. the South African Revenue Service authorised by the Commissioner of that Service to act under this Act;

(a) coin and paper money of the Republic;

(b) coin and paper money of another country;

1. travellers' cheques; or

2. cheques, but only in respect of payments made by a person who carries on the business of a casino, gambling institution or totalisator betting service to a patron of such business;

(a) coin and paper money of the Republic; or

(a) coin and paper money of the Republic;

(b) coin and paper money of another country; or

1. (c) travellers' cheques;; or

(2) This Act may not be construed as infringing upon 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 -

1. the attorney and the attorney’s client for the purposes of advice or litigation; or

2. a third party and an attorney for the purposes of litigation.

(a) the person has actual knowledge of that fact; or

(b) the court is satisfied that-

(ii) he or she fails to obtain information to confirm the existence of that fact.

(4) For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both -

(b) the general knowledge, skill, training and experience that he or she in fact has.

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. [Note 1 – this provision is taken directly from the South African Revenue Service Act, 1997; Note 2 - the FIC will need to be incorporated in the list of public entities in the relevant schedule to the Public Finance Management Act by the Minister responsible for the Public Service, in terms of section 47(1) of that Act]

1. The Centre is a juristic person.

3. OPTION 1 (current version)

The Centre's objective is to combat money laundering activities and related matters.

The Centre's objective is to identify the proceeds of unlawful activities and to combat [/assist in the combatting of] money laundering activities.

(1) The Centre'sprincipal objective of the Centre is to combat money laundering activities.

(1) The Centre's principal objective of the Centre is to combat money laundering activities.

4. (1) To achieve its objectives the Centre must—

(2) The Centre must consult regularly with the Council concerning the performance by the Centre of its functions. [See new section 15(1)(b) which has been inserteM d as an alternative to the former subsection (2)].

5. (1) The Centre may do all that is necessary or expedient to perform its functions effectively, which includes the power to—

1. do anything that is incidental to the exercise of any of its powers. [Note: this provision is similar to that contained in the Financial Services Board Act and has the same title]

(2) *OPTION 1 (current version)The Centre must comply with any directives of the Minister regarding security procedures and clearances in respect of employees, seconded personnel and other persons before appointing persons or obtaining the services of any such persons in terms of subsections (1)(b) or (c).

6. *(1) OPTION 1

The Minister must appoint a fit and proper person as the Director of the Centre.

The Minister must appoint a person who is not disqualified from being appointed or acting as a director of a company as the Director of the Centre.

(2) A person appointed as the Director holds office—

(3) The Minister must consult the Council before appointing a person or renewing the appointment of a person as the Director and determining the terms and conditions of appointment.

(3) The Minister must, except in the case of the appointment of the first Director if the first Director is appointed before the first meeting of the Council occurs, consult the Council before appointing a person or renewing the appointment of a person as the Director and determining the terms and conditions of appointment.

6A. (1) The Minister may remove the Director from office only on the grounds of misconduct, incapacity or incompetence.

(2) A decision to remove the Director from office must be based on a finding of an independent person appointed by the Minister.

(3) The Minister may suspend the Director from office pending the finding of the person referred to in subsection (2).

7. When the Director is absent or otherwise unable to perform the functions of office, or during a vacancy in the office of Director, the Minister may designate another employee of the Centre to act as Director.

8. (1) The Director—

(2) As the chief executive officer, the Director is responsible for—

(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).

(4) The Director performs the functions of office subject to anythe policy framework which may be prescribed bydirections of the Minister.

9. (1) The staff of the Centre consists of—

(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 (1)(b) and persons seconded to the Centre perform their duties subject to the control and directions of the Director.

(4) If an officer or employee in the public service is seconded to the Centre, the period of his or her service with the Centre shall 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.

(5) The provisions of any pension law applicable to an officer or employee referred to in subsection (4) or, in the event of his or her death, to his or her dependants, which are not inconsistent with this section, shall, with the necessary changes, continue so to apply.

(6) No person seconded to the Centre or employed by the Centre to perform any of the functions of the Centre may strike or induce or conspire with any other member of the staff 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 66 of 1995), are deemed to have been designated as an essential service in terms of section 71 of that Act.

(8) All other conditions of service of staff of the Centre are as determined in terms of this Act.

(9) The Centre must comply with any directives of the Minister regarding security procedures and clearances in respect of employees, seconded personnel and other persons before appointing persons or obtaining the services of any such persons in terms of section(5)(1)(b) or (c).

9A (1) No person other than the Director may be appointed or seconded to perform any of the functions of the Centre unless -

(2) If the Director is so satisfied, he or she shall issue a certificate with respect to 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 from time to time, or at such regular intervals as the Director may determine, be subjected to a further security screening as contemplated in paragraph (1)(a).

(4) The Director may withdraw a certificate referred to in subsection (2) if he or she obtains information which, after evaluation by him or her, causes him or her 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.

(5) If the certificate referred to in subsection (2) is withdrawn, the person concerned shall be unfit to continue to hold such office and the Director must discharge him or her from the Centre.

(6) No person may be appointed as the Director of the Centre unless -

(7) If the Minister is so satisfied, he or she shall issue a certificate with respect to such person in which it is certified that such person has successfully undergone a security clearance.

(8) The Director may from time to time be subjected to a further security screening as contemplated in paragraph (6)(a).

(9) The Minister may withdraw a certificate referred to in subsection (7) if he or she obtains information which, after evaluation by him or her, causes him or her to believe that the Director could be a security risk or could possibly act in any manner prejudicial to the objectives or functions of the Centre.

(10) If the certificate referred to in subsection (2) is withdrawn, the Director shall be unfit to continue to hold such office and the Minister must discharge him or her from the Centre.

10. The Centre is deemed to be an employer for the purposes of the Government Employees' Pension Law, 1996 ( Proclamation No. 21 of 1996).

11. (1) The funds of the Centre consist of—

(2) The Centre may accept donations but only with the approval of the Minister.

(3) The financial year of the Centre shall end on 31 March in each year.

12. The Auditor-General must audit the accounts and financial statementsrecords of the Centre.

13. (1) The Director may –

(2) A delegation or instruction in terms of subsection (1)—

(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 (1), 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.

(4) A person seconded to the Centre in terms of section 9 (2) is for the purposes of this section regarded as being a staff member.

14. A Money Laundering Advisory Council/Advisory Council of Money Laundering Control is hereby established.

15. (1) The Council must—

(2) The Director-General of the National Treasury must provide administrative and secretarial support and financial resources for the Council to function effectively.

(2) The Centre must provide administrative and secretarial support and sufficient financial resources within the scope of the Centre's budget for the Council to function effectively.

16. (1) The Council consists of the Director and a representative of each of the following, namely—

(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.

17. (1) The chairperson of the Council may call a meeting of the Council, but must call a meeting if the Minister so requests.

17. (1) The chairperson of the Council –

(a) may call a meeting of the Council; but

(b) must call a meeting if the Minister so requests.

(2) The Council—

(a) *OPTION 1must meet regularly;

must meet regularly, but not less than once per year;

(b) may determine its own procedures at meetings;

(cd) may appoint committees from its members to assist it in the performance of its functions.

(3) A committee appointed in terms of paragraph (1)(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.

(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—

17A (1) There is hereby established a committee, to be known as the Interdepartmental Coordinating Committee.

(2) The function of the Coordinating Committee is to coordinate the activities of the Centre and other relevant government institutions, including the co-ordination of procedures for the communication and transfer of information regarding matters falling within the operational scope of the Centre and such institutions.

(3) The Co-ordinating Committee consists of -

(b) the Director General of the Department of Justice and Constitutional Development;

(c) the Director General of the National Intelligence Agency;

(d) the Director General of the South African Secret Service;

(e) the Commissioner of the South African Police Service;

(f) the National Director of Public Prosecutions;

(g) the Commissioner of the South African Revenue Service;

(h) any other person designated from time to time by the President.

(4) A member of the Coordinating Committee may appoint a person on the staff of such member to represent that member at any meeting of the Coordinating Committee.

(5) The Coordinating Committee may conduct its business and proceedings at its meetings as it deems fit.

Amend ss65-69 of the Prevention Act to enable the Criminal Assets Recovery Committee established by that Act, which currently consists of the Ministers of Justice, Safety and Security and Finance, the National Director of Public Prosecutions and up to two other persons, to exercise the functions of the Committee proposed in option 1.

18. (1) This Act applies to all accountable institutions.

(2) The Minister may, by notice in the Gazette, amend the list of accountable institutions in Schedule 1 to—

(3) Before the Minister amends Schedule 1 in terms of subsection (2) (a) or (b) the Minister must consult the Council and the Centre, and—

19. (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 any or all of the provisions of this Act—

(2) Any exemption referred to in subsection (1) must be by notice in the Gazette and may be withdrawn or amended by the Minister, after consulting with the Council and the Centre.

20. (1) This Act applies to all supervisory bodies.

(2) The Minister may, by notice in the Gazette, amend the list of supervisory bodies in Schedule 2 to—

(3) Before the Minister amends Schedule 2 in terms of subsection (2) (a) or (b) the Minister must consult the Council and the Centre, and give the entity or functionary concerned, or the supervisory body concerned, at least 60 days written notice to submit written representations to the Minister.

21. (1) An accountable institution may not establish a business relationship or conclude a single transaction with a prospective client unless the accountable institution has taken reasonable the prescribed steps to establish—

(i) the identity of that other person; and

22. (21) If an accountable institution had established a business relationship with a client before this Act took effect, it must, within a reasonable period after the commencement of this Act, take reasonable steps—

(i) the identity of that other person; and

(ii) that other person's authority to act on behalf of the client; and

(2) If an accountable institution is unable within a reasonable period to establish the identity of any person as required by subsection (1), it may not conclude any further transaction in the course of that business relationship until it has established the identity of any such person.

(3) Subsection (1) does not apply in respect of a business relationship which an accountable institution knows or reasonably believes to have ended prior to the commencement of this Act.

(4) If, after this Act took effect, an accountable institution established a business relationship with a client or a business relationship referred to in subsection (3) recommences, the accountable institution may not conclude a transaction in the course of that business relationship unless the accountable institution has taken reasonable the prescribed steps—

(i) the identity of that other person; and

(d) to trace all accounts at that accountable institution that are involved in transactions concluded in the course of that business relationship. [Note: the practical problems relating to the implementation of this subsection must be addressed in the Advisory Council (for example in relation to existing bank accounts)].

(3) An accountable institution may not conclude a transaction in the course of business with a client unless the accountable institution has taken the prescribed steps—

(i) the identity of that other person; and

(4) In order to fulfil identification requirements concerning legal entities, financial institutions should, when necessary, take measures –

(a) to verify the legal existence and structure of the client by obtaining either from a public register or from the customer or both, proof or incorporation, including information concerning the client's name, legal form, address, directors and provisions regulating the power to bind the entity.

(b) to establish and verify the identity of any person purporting to act on behalf of the client.

(c) to verify that the person is authorised to act on behalf of the client.

Define "identify".

23. (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 client, the accountable institution must keep record of—

(ii) that single transaction; and

(2) Records kept in terms of subsection (1) may be kept in electronic form.

24. An accountable institution must keep the records referred to in section 23 which relate to—

25. (1) The dutiesduty imposed by section 23 on an accountable institution to keep record of the matters specified in that section may, in the case of two or more accountable institutions forming part of the same business group, be centralised within the group and be performed by a third party or on behalf of any entity within theof the group on behalf of those accountable institutions, asinstitution as long as they theas the accountable institution has free and easy access to the records.

(2) If a third party referred to in subsection (1) fails to properly comply with the requirements of section 23 on behalf of the accountable institution concerned, the accountable institution will be liable for that failure. .

(3) [OPTIONAL CLAUSE]If an accountable institution appoints a third party to perform the duties imposed on it by section 23, the accountable institution shall forthwith provide the Centre with the prescribed particulars regarding the third party.

26. *OPTION 1

A record kept in terms of section 23 or section 25, or a certified extract of any such record, or a certified printout of an electronic record, is 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 in a matter before the court.

A record kept in terms of section 23 or section 25, or an extract of any such record, or a printout of an electronic record, certified by an officer of the accountable institution, is on its mere production in a court admissible as evidence in a matter before the court.

A record kept in terms of section 23 or section 25, or a certified extract of any such record, or a printout or recording or transcript of an electronic record, is on its mere production in a court admissible as evidence in a matter before the court.

27. (1) An authorised representative of the Centre—

(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

*OPTION 2

(2) The authorised representative of the Centre may, except in the case of records referred to in subsections 23(1)(a), (b) and (c) and 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 the area of jurisdiction within which the records are kept:

a judge of the area of jurisdiction within which the records are kept:

a judge, designated by the Minister of Justice for the purposes of the Interception and Monitoring Prohibition Act, 1992 (Act 127 of 1992), of the area of jurisdiction within which the records are kept:

Provided that such a warrant may be issued by the judge [or magistrate or regional magistrate] in respect of records kept in another area of jurisdiction, if the judge [or magistrate or regional magistrate] deems it justified.

(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.

(4) A warrant issued in terms of this section may contain such conditions regarding access to the relevant records as the judge[, magistrate or regional magistrate] may deem appropriate.

(54) An accountable institution or supervisory body or the South African Revenue Services, as the case may be, must without delay give all reasonable assistance to an authorised representative of the Centre necessary to enable that representative to exercise the powers mentioned in subsection (1).

28. An accountable institution must, within the prescribed period, report to the Centre the prescribed particulars concerning a transaction concluded with a client if in terms of the transaction an amount of cash in excess of the prescribed amount—

28. An accountable institution and a reporting institution must, within the prescribed period, report to the Centre the prescribed particulars concerning a transaction concluded with a client if in terms of the transaction an amount of cash in excess of the prescribed amount—

OPTION 1 (current version)

(2) If an accountable institution suspects or reasonably ought to have suspected that, as a result of a transaction which it is asked to conclude or about which enquiries are made, it may receive the proceeds of criminal conduct or in any other way be used for money laundering purposes should the transaction be concluded, it must, within the prescribed period after the suspicion arose or reasonably ought to have arisen, report to the Centre—

(3) No accountable institution which 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 person, including the person in respect of whom the report is or is to be made, otherwise than—

(4) No person who knows or suspects that a report has been or is to be made in terms of this 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—

29. (1) If an accountable institution or an employee of the accountable institution in the course and scope of his or her duties to the accountable institution suspects or reasonably ought to have suspected that as a result of a transaction or a series of transactions concluded by it, it the accountable institution, the accountable institution has received or is about to receive the proceeds of unlawful activities; [this version could also include an expanded set out options along the lines of clause 29(1)(b) of option 3 below] or has been used or is about to be used in any other way for money laundering purposes, it the accountable institution orand the employee must, within the prescribed period after the suspicion arose or reasonably ought to have arisen, report to the Centre the grounds for the suspicion; and the prescribed particulars concerning the transaction.

(2) If an accountable institution or an employee of the accountable institution in the course and scope of his or her duties to the accountable institution suspects or reasonably ought to have suspected that, as a result of a transaction which the accountable institution it is asked to conclude or about which enquiries are made, the accountable institution it may receive the proceeds of criminal conduct or in any other way be used for money laundering purposes should the transaction be concluded, the accountable institution orand the employee it must, within the prescribed period after the suspicion arose or reasonably ought to have arisen, report to the Centre—

(3) No accountable institution or employee which 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 person, including the person in respect of whom the report is or is to be made, otherwise than—

(4) No person who knows or suspects that a report has been or is to be made in terms of this 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—

29. (1) If an accountable institution 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 or reasonably ought to have suspected that –

1. has facilitated or is likely to facilitate the transfer of the proceeds of unlawful activities; or

   [(ii) has no apparent business or lawful purpose and the person knows of no reasonable explanation for the transaction after examining the available facts, including the background and possible purpose of the transaction] [to be discussed]; or

2. is conducted for the purpose of avoiding giving rise to a reporting duty under this Act; or

3. is conducted for the purpose of evading a duty to pay any tax or duty imposed by any revenue law [does this term have a commonly understood meaning?] [this requirement to be discussed]

(2) If an accountable institution 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 suspects or reasonably ought to have suspected that, as a result of a transaction or a series of transactions which it he is she the business is asked to conclude or about which enquiries are made, it may receive the proceeds of criminal conduct or in any other way be used for money laundering purposes should the transaction be concluded, may, if that transaction or those transactions had been concluded, have caused any of the consequences referred to in subsection (1)(a), (b) or (c)it must, within the prescribed period after the suspicion arose or reasonably ought to have arisen, report to the Centre—

(3) No personaccountable institution which 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 person, including the person in respect of whom the report is or is to be made, otherwise than—

(4) No person who knows or suspects that a report has been or is to be made in terms of this 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—

30. If an accountable institution through electronic transfer sends money in excess of a prescribed amount out of the Republic or receives money in excess of a prescribed amount from outside the Republic on behalf, or on the instruction, of another person

that is not a bank,

that is not a bank

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.

31. If a supervisory body or the South African Revenue Service suspects that an accountable institution, as a result of a transaction concluded by or with the institution, wittingly or unwittingly has received or is about to receive the proceeds of unlawful activities or has in any other way been used or may be used in future for money laundering purposes, it must—

32. (1) A person intending to convey an amount of cash in excess of thea 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 authorised by the Minister for this purpose.

(2) A person authorised in terms of subsection (1) must without delay send a copy of the report to the Centre.

33. (1) A report in terms of section 28, 29, 30 or 31 to the Centre and a report in terms of section 32(1) to a person authorised by the Minister must be made in the prescribed manner.

(2) OPTION 1The Centre, or an investigating authority acting with the permission of the Centre or under the authority of an authorised officer may request an accountable institution, a reporting institution, a supervisory body, the South African Revenue Service or any other person that has made a report in terms of section 28, 29, 30, 31 or 32(1) to furnish the Centre or that investigating authority without delay 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 and as that accountable institution, supervisory body or person may have available.

(2) OPTION 2 [Reporting institutions not included]

The Centre, or an investigating authority acting with the permission of the Centre or under the authority of an authorised officer may request an accountable institution, a supervisory body, the South African Revenue Service or any other person that has made a report in terms of section 28, 29, 30, 31 or 32(1) to furnish the Centre or that investigating authority without delay 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 referred to in subsection (2) receives a request under that subsection, that institution or person must furnish the Centre without delay with such additional information concerning the report and the grounds for the request as that institution or person may have available.

34. An institution or person accountable institution required to make that has made a report to the Centre in terms of section 28, 29 or 30 may continue with and carry out the transaction in respect of which the report is required to be made unless the Centre directs the accountable institution in terms of section 35 not to proceed with the transaction.

35. (1) If the Centre, after consulting an accountable institution or a person required to make a report in terms of section 28, 29 or 30, has reasonable grounds to suspect that a transaction or a proposed transaction may involve the proceeds of unlawful activities or may constitute money laundering, it may, to the extent that the transaction has not been completed, direct the accountable institution or person in writing not to proceed with the carrying out of that 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 working days, in order to allow the Centre—

(2) An order in terms of subsection (1) lapses after three months unless extended in terms of subsection (3).

(3) A [magistrate, regional magistrate or] judge in chambers of the area of jurisdiction in which the accountable institution conducts business referred to in subsection (1) may extend an order issued in terms of subsection (1) for further periods not exceeding three months at a time if—

(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.

37. Subject to subsection (2), nNo 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, affects compliance with a provision of this 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 -

1. 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

2. a third party and an attorney for the purposes of litigation which is pending or contemplated or has commenced.

38. (1) *OPTION 1No action, whether criminal or civil, lies against an accountable institution, reporting institution, supervisory body or 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 institution, supervisory body or person.

(2) A person who has made, initiated or contributed to a report or furnished additional information concerning 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.

(3) No evidence concerning the identity of a person who has made, initiated or contributed to a report or who has furnished additional information concerning a report in terms of a provision of this Part or the contents of such a report, or the grounds for such a report, or the contents or nature of such additional information is admissible as evidence in criminal proceedings unless that person testifies at those proceedings.

(4) No evidence concerning the identity of a person who has initiated or contributed to a report in terms of a provision of this Part is admissible as evidence in criminal proceedings unless that person testifies at those proceedings.

39. A certificate issued by an official of the Centre that information specified in the certificate was reported to the Centre in terms of a provision of this Part, is, subject to section 38(3) and (4), 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 admissiblein a matter before that court.

40. (1) No person is entitled to information held by the Centre, except—

1. (2) A request for information in terms of subsection (1) (b) to (df) or subsection (1)(f) must be in writing and must specify the desired information and the purpose for which the information is required.

(3) Information held by the Centre may only be provided to an entity referred to in subsection (1)(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 between the Centre and such entity.

(4) An agreement referred to in subsection (3) -

1. does not take effect until it has been approved in writing by the Minister;

2. may not 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 to provide to the Centre.

(3) 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).

41. No person may disclose confidential information held by or obtained from the Centre except—

(e) in terms of an order of court.

42. (1) An accountable institution must formulate and implement internal rules concerning—

(2) Internal rules must comply with the prescribed requirements.

(3) An accountable institution must makeprovide a copy of the internal rules available to each of its employees involved in transactions to which this Act applies.

42A

An accountable institution must –

1. provide training to those of its employees whose duties require them to deal with enquiries, transactions or discontinued transactions in respect of clients and potential clients of the accountable institution to enable them to –

   1. recognise which such enquiries, transactions and discontinued transactions are reportable under this Act;

   2. become aware of the institution’s duties under this Act; and

   3. comply with the internal rules applicable to them;

2. appoint a person with the responsibility to ensure compliance by –

(ii) the accountable institution with its obligations under this Act.

42B

2. If the auditor establishes that the accountable institution has substantially complied with those obligations, the auditor shall inform the Centre of that fact in writing.
3. If the auditor is unable to establish that the accountable institution has substantially complied with those obligations, the auditor shall inform the Centre of that fact in writing.

42C. If the Centre in the performance of its functions has reasonable grounds to suspect that an accountable institution, or any other person other than a supervisory body who is subject to the provisions of this Act, has committed an act (including an act of omission) which may constitute an offence in terms of this Act or any other law, it may refer the matter to -

43. (1) If the Centre has reasonable grounds to suspect that an accountable institution has committed an act (including an act of omission) which may constitute an offence in terms of this Act, it must institute an inquiry to establish whether an offence has been committed if—

(2) An accountable institution which submits itself to an inquiry, and which subsequently complies with subsection (1)(b) and abides by any finding and order made in terms of section 46, is exempted from criminal prosecution in respect of the act or acts for which the inquiry is established.

(3) The Director or any other official of the Centre or other person designated by the Director may conduct the inquiry on behalf of the Centre.

(4) If an accountable institution admits that it has committed an offence of which it is charged and the Centre and the accountable institution agree on the terms of an appropriate penalty against the institution, the person conducting an inquiry against that institution in terms of subsection (1) may, without hearing any evidence or any further evidence—

(5) The Centre must refer its suspicion and the evidence in its possession on which such suspicion is based to the National Director of Public Prosecutions if an accountable institution—

(6) Before instituting an inquiry contemplated in this section, the Centre must consult the National Director of Public Prosecutions who may, within 30 days of the commencement of such consultation, direct that the interests of justice merit a criminal prosecution.

(7) If the National Director of Public Prosecutions directs that the interests of justice merit a criminal prosecution, the Centre—

44. (1) The person conducting an inquiry in terms of section 43 determines the inquiry procedure, subject to the other provisions of this Act.

(2) The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court applies to the questioning of a person in the course of an inquiry.

45. (1) The person conducting an inquiry in terms of section 43 may—

(2) A person appearing at an inquiry—

46. (1) If the person conducting an inquiry in terms of section 43 finds that the accountable institution has committed an offence as charged, that person may order the forfeiture by way of penalty of the whole or a part of the amount deposited or secured by the institution.

(2) Before the person conducting the inquiry orders forfeiture, that person must take all relevant matters into account, including—

(3) A finding made and the amount of any forfeiture ordered in terms of this section must be made public.

(4) Money forfeited in terms of subsection (1) must be deposited into the National Revenue Fund.

47. The record of the proceedings of an inquiry is not admissible in criminal proceedings, except where a person is charged with having committed an offence mentioned in section 48 (h), (i) or (j).

48. A person is guilty of an offence if that person—

49. An accountable institution is guilty of an offence if that institution—

50. Any official or employee of a supervisory body is guilty of an offence if that official or employee was knowingly a party to —

50A. (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.

(2) An accountable institution that concludes any transaction in contravention of section 21(2) is guilty of an offence.

50B. An accountable institution that fails―

(b) to keep such records in accordance with section 24;

50C. Any person who wilfully tampers with a record kept in terms of section 23, or destroys such a record, otherwise than in accordance with section 24, is guilty of an offence.

50D. (1) Any person who fails to report to the Centre the prescribed information in respect of―

(a) a cash transaction in accordance with section 28;

(b) an electronic transfer of money in accordance with section 30,

50E. Any person who fails to report the conveyance of cash into or out of the Republic in accordance with section 32, is guilty of an offence.

50F. An accountable institution that fails to comply with an order by a judge in accordance with section 36, is guilty of an offence.

50G. An accountable institution that fails ―

50H. An accountable institution that fails –

(a) to provide training referred to in section 42(A)(a); or

(b) to appoint the person referred to in section 42A(b),

is guilty of an offence.

50I. Any official or employee of a supervisory body who was knowingly a party to a failure―

(a) to report information in accordance with section 31(a); or

(b) to retain records relating to a report in accordance with section 31(b),

50J. (1) Any person who―

(2) Any person who, knowing or suspecting-

(a) that information has been disclosed to the Centre; or

50K. An accountable institution that fails to comply with a direction by the Centre in terms of section 35, is guilty of an offence.

50L (1) 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 Act, is guilty of an offence.

(2) Any person who fails to comply with a request made by the Centre or an investigating authority acting under the authority of an authorised officer in terms of section 33(2), is guilty of an offence.

(3) An accountable institution or official of a supervisory body that fails to give assistance to a representative of the Centre in accordance with section 27(5), is guilty of an offence.

50M Any person who conducts, or causes to be conducted, two or more transactions with the purpose, in whole or in part, of avoiding giving rise to a reporting duty under this Act is guilty of an offence.

50N (1) Any person who, without authority to do so, wilfully accesses or causes any 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 that belongs to, or is under the control of, the Centre, to perform a function is guilty of an offence.

50O Any person who, without authority to do so, willfully 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 of such a computer system, application or data to be otherwise impaired, is guilty of an offence.

50P "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 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 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 more of which is capable of―

(a) containing data; or

"data" means any representation of information, knowledge, facts or concepts, capable of being processed in a computer system;

51. (1) A person convicted of an offence mentioned in section 50A, 50B, 50C, 50D, 50E, 50I or 50J is liable to a fine or to imprisonment for a period not exceeding fifteen years.

(2) A person convicted of an offence mentioned in section 50F, 50K, 50N or 50O is liable to a fine or to imprisonment for a period not exceeding ten years.

(3) A person convicted of an offence mentioned in section 50G or 50H is liable to a fine or to imprisonment for a period not exceeding five years.

51A (1) A regional court shall have penal jurisdiction to impose any penalty mentioned in section 51(1), even though that penalty may exceed the penal jurisdiction of that court.

(2) A magistrate's court shall have penal jurisdiction to impose any penalty mentioned in section 51(2) or (3), even though that penalty may exceed the penal jurisdiction of that court.

(3) A magistrate's court or regional court shall have jurisdiction to make any order of forfeiture referred to in section 51C, even though the amount forfeitable under that order may exceed the civil jurisdiction of a magistrate's court or regional court.

51. (1) A person convicted of an offence mentioned in section 48 or 49 is liable to a fine or to imprisonment for a period not exceeding ten years or to both a fine and such imprisonment.

1. A person convicted of an offence mentioned in section 50 is liable to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

51B23 If a person who is an employee or director of, or a partner in, an accountable institution is charged with committing an offence under section 50D, that person may raise as a defence the fact that he or she had -

1. the accountable institution had not appointed such a person or established such rules; or
2. the accountable institution had not complied with its obligations in section 42(3) in respect of that person; or

(1) A police official or person authorised by the Minister to receive a report under section 32(1), who has reasonable grounds to suspect that an offence under section 50D has been or is about to be committed, may at any time search any person, container or other thing in which any cash contemplated in section 32(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 32(1).

(3) Any cash seized under subsection (2) shall be returned to the person from whom it was seized after the expiry of a period of ninety days from the date of the seizure, unless, before the expiry of that period -

(a) that person has been arrested without a warrant of arrest being issued;

(b) a warrant for the arrest of that person has been issued; or

(c) a summons has been issued for that person to appear in court,

in connection with the suspected commission of an offence under section 50D in respect of that cash or any portion of it.

(4) Whenever any person is convicted of an offence under section 50D the court convicting that person shall, in addition to any punishment which that court may impose in respect of the offence, declare any cash contemplated in section 32(1) that was seized under section 32(2), or is in the possession or custody or under the control of the convicted person, to be forfeited to the State OPTION [if the court is satisfied that there are reasonable grounds to believe that the cash may comprise, in whole or in part, the proceeds of unlawful activities.]

(5) Whenever a person is convicted of an offence under section 50L the court convicting that person shall, 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 OPTION [if the court is satisfied that there are reasonable grounds to believe that the property comprises, in whole or in part, the proceeds of unlawful activities].

(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-

1. conveyed as contemplated in section 32(1) or that he or she could not prevent such the cash from being so conveyed; or

(7) Subject to subsection (6), the court concerned 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 -

(9) Any person aggrieved by a determination made by the 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 such conviction.

(10) In order to make a declaration of forfeiture 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.

52. OPTION 1

This Act does not affect an investigating authority's powers in terms of other legislation to obtain information for the purpose of criminal investigations.

52. **OPTION 2

This Act does not affect  -

(b) a supervisory body's duties or powers in relation to the entities supervised by it.

52A (1) The Minister may, by notice in the Gazette, amend the list of accountable institutions in Schedule 1 to—

(2) Before the Minister amends Schedule 1 in terms of subsection (1) (a) or (b) the Minister must consult the Council and the Centre, and—

(3) Any addition to or deletion from the list of accountable institutions in schedule 1 in terms of subsection (1)(a) or (b) must, before publication in the Gazette, be approved by Parliament.

52B (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—

(2) Any exemption referred to in subsection (1) must be by notice in the Gazette and may be withdrawn or amended by the Minister, after consulting with the Council and the Centre.

52C (1) The Minister may, by notice in the Gazette, amend the list of supervisory bodies in Schedule 2 to—

(3) Before the Minister amends Schedule 2 in terms of subsection (1) (a) or (b) the Minister must consult the Council and the Centre, and give the entity or functionary concerned, or the supervisory body concerned, as the case may be, at least 60 days written notice to submit written representations to the Minister.

(4) Any addition to or deletion from the list of supervisory bodies in Schedule 2 in terms of subsection (2)(a) or (b) must, before publication in the Gazette, be approved by Parliament.

52D (1) The Minister may, by notice in the Gazette, amend the list of reporting institutions in Schedule 3 to—

(c) make technical changes to the list.

(3) Before the Minister amends Schedule 3 in terms of subsection (1) (a) or (b) the Minister must consult the Centre, and—

(4) Any addition to or deletion from the list of reporting institutions in Schedule 3 in terms of subsection (1)(a) or (b) must, before publication in the Gazette, be approved by Parliament.

53. (1) The Minister, after consulting the Council and the Centre, may make, repeal and amend regulations concerning—

(2) The Minister, after consulting the Council and the Centre, must make regulations concerning –

(a) [Johnny de Lange to clarify]

(32) Regulations in terms of subsections (1) and (2) may—

54. 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 any thing done in good faith in terms of or in furthering the objects of this Act.

54. The Minister, the Centre, an accountable institution, a supervisory body or an employee or representative of the Centre, or an accountable institution or a supervisory body or any other person performing a function or exercising a power in terms of this Act, including any person acting on behalf of the Minister, the Centre, asn accountable institution, or a supervisory body or any such other person, is not liable, whether criminally or civilly, for any thing done in good faith in terms of or in furthering the objects of this Act.

No person performing a function, complying with a duty or exercising a power in terms of this Act and no person acting on behalf of any such person is liable, whether criminally or civilly, for anything done in good faith in terms of or in furthering the objects of this Act.

55. The Prevention Act is hereby amended to the extent set out in schedule 3.by the insertion after section 6 of the following section:

55. Section 7(5)(a) of the Prevention Act is hereby amended as follows:

"(5) (a) No obligation as to secrecy and no other restriction on the disclosure of information as to the affairs or business of another, whether imposed by any law, the common law or any agreement, shall affect any obligation imposed under this section to report or disclose information or to permit access to any registers, records or other documents unless that obligation of secrecy or other restriction is based on the common law right to professional privilege between an attorney and the attorney's client in respect of communications made in confidence between -

1. the attorney and the attorney’s client for the purposes of advice or litigation; or

2. a third party and an attorney for the purposes of litigation

his or her client in respect of information communicated to the attorney so as to enable him or her to provide advice, to defend the client or to render other legal assistance to the client in connection with an offence under any law in respect of which the client is charged, in respect of which he or she has been arrested or summoned to appear in court or in respect of which an investigation with a view to institute criminal proceedings is being conducted against him or her."

56. (1) Section 7 of the Prevention Act does not apply to any person contemplated in section 7(1) of that Act, in respect of any act (including an act of omission) which is reportable in terms of section 29(1) or (2) of this Act, if the business which such person carries on, is in charge of, manages or is employed by is an accountable institution and the act or omission in question was committed or omitted pursuant to such person's duties in relation to that business.

1. Evidence that an accountable institution has made a report to the Centre in terms of section 29(1) or (2) of this Act with regard to a transaction concluded by it, constitutes a defence for the accountable institution on a charge of having contravened section 2(1) (a), (b) or (c), 4, 5 or 6 of the Prevention Act in relation to that specific transaction.

57. The footnotes in this Act have been inserted only for ease of reference to relevant provisions of the Prevention Act. They are not part of this Act. They do not have the force of law.

587. This Act is called the Financial Intelligence Centre Act, 2000, and takes effect on a date fixed by the President by proclamation in the Gazette.

1. An attorney as defined in the Attorneys Act, 1979 (Act No. 53 of 1979).

23. A person who carries on the business of issuing, selling or redeeming travellers cheques.

24. A person who carries on the business of a money remitter.

7. The National Gambling Board established in terms of the National Gambling Act, 1996 (Act No. 33 of 1996).

8. The JSE Securities Exchange South Africa.

1. A person who carries on the business of dealing in motor vehicles.

2. A person who carries on the business of dealing in Kruger rands.

1. the accountable institution had not established such rules;
2. the accountable institution had not complied with its obligations in section 42(3) in respect of that person; or
3. those rules were not applicable to that person. [consider whether these defences should also be open to employees of other bodies]

5. The amendment of section 77 –

   1. by the deletion from subsection (1) of paragraph (b); and

   2. by the deletion from subsection (1) of paragraph (c). [Pieter – what is the motivation for this proposed change?]