ZALC - Project 104: Money Laudering adn Related Matters

To prevent the manipulation and concealment of proceeds of crime; in this regard to provide for duties of identification, record-keeping and reporting of information; the establishment of a Financial Intelligence Centre; the establishment of a Money-laundering Policy Board; and for incidental matters.

(b) a board of executors or a trust company or any other person that invests, keeps in safe custody, controls or administers trust property;

(d) a financial instrument trader as defined in the Financial Markets Control Act, 1989 (Act 55 of 1989);

(e) a group of persons that may be described by the term or concept known as “stokvel” which –

(i) establishes a continuous pool of capital by raising funds by means of the subscriptions of members;

(ii) is a formal or informal rotating credit scheme with entertainment, social, and economic functions;

(iii) consists of members who have pledged mutual support to each other towards the attainment of specified objectives;

(f) a managing company registered under the Unit Trusts Control Act, 1981 (Act 54 of 1981), or a unit trust scheme as defined in that Act;

(ii) depositing the money in such an account or fund into a bank account on behalf of the persons from whom he or she had collected the money;

(i) a person who carries on “insurance business” as defined in the Insurance Act, 1943 (Act 27 of 1943), and includes an insurance broker and an agent of an insurer;

(j) a person who carries on “the business of a bank” as defined in the Banks Act, 1990 (Act 94 of 1990);

(l) a person who carries on the business of dealing in bullion, coins or Kruger Rands;

(m) a person who carries on the business of effecting a money lending transaction directly between a lender and a financial institution as borrower through his or her intermediation;

(n) a person who carries on the business of exchanging amounts in one currency for amounts in another currency;

(o) a person who carries on the business of lending money against the security of securities, excluding the South African Reserve Bank;

(p) a person who carries on the business of rendering investment advice and investment broking services;

(q) a person who issues, sells or redeems travellers’ cheques, money orders or similar instruments;

(r) the Post Office Savings Bank as established under section 52 of the Post Office Act, 1958 (Act 44 of 1958);

(s) a public accountant as defined in the Public Accountants’ and Auditors’ Act, 1991 (Act 80 of 1991), in respect of investment advice or investment service rendered by such an accountant;

(t) a member of a stock exchange licenced under the Stock Exchanges Control Act, 1985 (Act 1 of 1985); and

(u) a totalisator agency board or a person operating a totalisator betting service;

“business relationship” means an arrangement between a client and an accountable institution for the purpose of concluding transactions on a regular basis;

(b) in respect of a payment made by a person who carries on the business of a casino, gambling institution or totalisator betting service, includes cheques;”

“client” means a person who has entered into a business relationship or a single transaction with an accountable institution;

“Deputy-Director” means a Deputy-Director of the Financial Intelligence Centre;

“Director” means the Director of the Financial Intelligence Centre and includes a Deputy-Director;

“Financial Intelligence Centre” means the body established by section 21 and “Centre” has a similar meaning;

“Money-laundering Policy Board” means the body established by section 27, and “Board” has a similar meaning;

“proceeds of criminal conduct” means property or part thereof derived directly or indirectly from —

(b) an act or omission outside the Republic that, if it had occurred in the Republic, would have constituted an offence;

“prospective client” means a person seeking to enter into a business relationship or a single transaction with an accountable institution;

“relevant investigating authority” means an investigating authority that is carrying out an investigation under any law, or that is requested by the Director to carry out an investigation, arising from or relating to a matter in connection with the disclosure of information in compliance with a duty imposed by section 8, 9, 10, 11 or 12;

“reportable transaction” means a transaction in respect of which information must be disclosed in terms of section 8, 9, 10, 11 or 12;

“restricted account” means an account opened with a bank for the purpose of section 28;

“single transaction” means a transaction other than a transaction concluded in the course of a business relationship;

(a) the Financial Services Board as established under the Financial Services Board Act, 1990 (Act 97 of 1990);

(b) the Registrar of Banks as defined in the Banks Act, 1990, (Act 94 of 1990); and

“transaction” means a transaction concluded between a client and an accountable institution in accordance with the type of business carried on by that institution;

(2) Nothing in this Act shall be construed so as to infringe upon the common law right to legal professional privilege as between an attorney and his or her client.

2 Identification when establishing business relationship or concluding single transaction

(1) If an accountable institution is approached by a prospective client to establish a business relationship or to conclude a single transaction that institution must, as soon as is reasonably practicable after it is so approached, obtain the prescribed proof of the prospective client’s identity.

(2) Where a prospective client is, or appears to be acting otherwise than as principal, the accountable institution concerned must as soon as is reasonably practicable after contact is first made with the client, obtain the prescribed proof of —

(a) the identity of the person on whose behalf the prospective client is acting; and

(b) the authority of the prospective client to establish that relationship or to conclude that transaction.

(3) No accountable institution may do anything to give effect to a business relationship established, or a single transaction concluded, with the prospective client until the proof of identity required by subsection (1) or (2), as the case may be, has been obtained.

3 Identification when concluding transaction in course of business relationship

(1) If an accountable institution is approached to conclude a transaction in the course of a business relationship, that institution must, as soon as is reasonably practicable, ascertain in the prescribed manner —

(b) the identity of the client with whom the relevant business relationship was established; and

(2) Where the accountable institution is approached by a person other than the client with whom the relevant business relationship was established, that accountable institution must obtain the prescribed proof of—

(3) No accountable institution may conclude a transaction in the course of a business relationship until the factors referred to in subsection (1) have been ascertained and, where applicable, the proof referred to in subsection (2) has been obtained.

4 Record-keeping in respect of establishment of business relationship or conclusion of single transaction

(1) Whenever an accountable institution establishes a business relationship or concludes a single transaction, that accountable institution must keep records of —

(a) the identity of the client with whom the business relationship is established or the single transaction is concluded;

(i) the identity of each person on whose behalf the client is acting in establishing that relationship or concluding that transaction; and

(ii) the authority of the client to establish that relationship or to conclude that transaction;

(d) the identifying particulars of all accounts at that accountable institution that are involved in that relationship or transaction; and

(e) the identity of the person, or persons, who obtained the information concerned on behalf of the accountable institution.

(2) The records referred to in subsection (1) must include copies of all documentation presented to the accountable institution under section 2 as proof of a person’s identity.

(3) An accountable institution must keep all records referred to in this section for a period of at least five years commencing on the date that —

(b) the activities taking place in the course of the relevant single transaction have been completed.

5 Record-keeping in respect of transactions concluded in course of business relationship

(1) Whenever an accountable institution concludes a transaction in the course of a business relationship that accountable institution must keep records of —

(a) the identity of the person by whom the accountable institution is approached to conclude that transaction;

(b) the identity of the client with whom the relevant business relationship was established;

(c) where the institution is approached by a person other than the client with whom the relevant business relationship was established, the authority of such a person to conclude that transaction;

(e) the identifying particulars of all accounts at that accountable institution that are involved in that transaction; and

(f) the identity of the person, or persons, who ascertained or obtained the information concerned on behalf of the accountable institution.

(2) The records referred to in subsection (1) must include copies of all documentation presented to the accountable institution under section 3 as proof of a person’s identity.

(3) An accountable institution must keep all records under this section for a period of at least five years commencing on the date the activities taking place in the course of the relevant transaction have been completed.

(1) All records kept by an accountable institution under this Act must be kept in the prescribed manner.

(2) An accountable institution must take reasonable steps to ensure that no person gains access to records kept by that institution under this Act, unless such a person is authorised to do so under this Act or any other Act.

Information kept in the records of an accountable institution under this Act in the prescribed form is, in that form, admissible as evidence in any proceedings in a court of law in so far as it is not inadmissible at such proceedings because of some other prohibition upon its admissibility.

An accountable institution that is a party to a transaction involving the payment or receipt by the institution of an amount of cash exceeding the amount prescribed from time to time, must report the prescribed details in respect of that transaction to the Financial Intelligence Centre as soon as is reasonably possible but not later than five days after having become a party to such a transaction.

(1) An accountable institution that is party to a transaction in respect of which there are reasonable grounds to suspect that the transaction brings, or will bring, the proceeds of criminal conduct into the possession of the institution, or will in some way facilitate the transfer of the proceeds of crime, must report the suspicion, together with the information the Minister may prescribe for this purpose, to the Financial Intelligence Centre as soon as is reasonably possible but not later than ten days after having become aware of such grounds.

(2) If a client or prospective client discontinues an attempt to conclude a transaction with an accountable institution, and there are reasonable grounds to suspect that the transaction, if concluded, may have resulted in the proceeds of criminal conduct coming into the possession of the institution, or may in some way have facilitated the transfer of the proceeds of crime, that institution must report the suspicion, together with the information the Minister may prescribe for this purpose, to the Financial Intelligence Centre as soon as is reasonably possible but not later than ten days after having become aware of such grounds.

An accountable institution that sends funds out of the Republic or receives funds from outside the Republic by electronic means, and in so sending or receiving is acting on behalf, or at the request of, another person who is not a bank, must report that transfer together with the prescribed information to the Financial Intelligence Centre as soon as is reasonably possible but not later than five days after the funds were so sent or received.

If a supervisory body has reasonable grounds to suspect that property that is or has been under the control of an accountable institution is the proceeds of criminal conduct or that any action by an accountable institution has facilitated or will facilitate the transfer of such proceeds, that body must report the suspicion together with the information that the Minister may prescribe for this purpose to the Financial Intelligence Centre as soon as is reasonably possible but not later than ten days after having become aware of such grounds.

A person who intends to convey an amount of cash in the form of South African currency or foreign currency, exceeding the amount prescribed from time to time, out of or into the Republic must report the prescribed details in respect of that transfer to the Financial Intelligence Centre before the transfer takes place.

(1) A report made under section 8, 9 or 10 must be made in the manner prescribed in respect of the institution concerned or a class of accountable institutions or that includes that institution.

(2) A report made under section 11 or 12 must be made in the manner prescribed in respect of each section.

(3) An accountable institution that has made a report under section 8, 9 or 10, or a supervisory body that has made a report under section 11, or a person that has made a report under section 12, must upon request by an official of the Financial Intelligence Centre or the relevant investigating authority provide the information specified in the request to the extent that the institution or person concerned has that information.

An accountable institution that has disclosed information in respect of a transaction in compliance with a duty imposed by sections 8, 9, 10 and 13 may continue carrying out that transaction unless that institution is directed by the Financial Intelligence Centre to suspend the carrying out of that transaction.

No duty of secrecy or confidentiality or any other restriction on the disclosure of information as to the affairs of a client or customer of an accountable institution, whether imposed by any law, the common law or any agreement shall affect a duty imposed by section 8, 9, 10, 11, 12 or 13.

(1) No liability based on a breach of a duty as to secrecy or confidentiality or any other restriction on the disclosure of information as to the affairs of a client or customer, whether imposed by any law, the common law or any agreement, or based on any other cause of action, shall arise from a disclosure, made in good faith, of information in compliance with a duty imposed by section 8, 9, 10, 11, 12 or 13.

(2) A person who disclosed, or initiated the disclosure of in formation under sections 8, 9, 10, 11, 12 or 13 shall be competent, but not compellable, to give evidence in criminal proceedings in a court of law.

(3) No evidence as to the identity of a person who disclosed, or initiated the disclosure of information under sections 8, 9, 10, 11, 12 or 13, or the contents of such a disclosure or the grounds upon which such a disclosure was based is admissible as evidence in criminal proceedings in a court of law unless that person testifies at such proceedings.

(4) In proceedings in a court of law a certificate issued by the Director of the Financial Intelligence Centre is evidence of the fact that information in respect of a particular case was reported to the Centre.

The Minister may prescribe aspects that must be addressed in internal policies formulated under sections 18, 19, 20 and 21 and, without limiting the contents of such policies to the aspects so prescribed, may prescribe different aspects in respect of different accountable institutions or classes of accountable institutions.

An accountable institution must formulate and implement an internal policy or policies on the procedures to establish and verify the identity of a person whom the institution is required to identify under sections 2 and 3.

An accountable institution must formulate and implement an internal policy or policies on the procedures to ensure the capture of all information of which record must be kept under sections 4 and 5.

An accountable institution must formulate and implement an internal policy or policies on the identification of reportable transactions and reporting of the prescribed information in respect of such transactions.

An accountable institution must formulate and implement an internal policy or policies on procedures to —

(a) ensure that persons in charge of, or employed by, the institution are aware of the institution’s duties under this Act; and

(b) provide persons in charge of or employed by the institution with training as to the recognition and handling of transactions concluded by, or on behalf of a person, that involves or appears to involve the proceeds of criminal conduct.

There is hereby established a body to be known as the Financial Intelligence Centre.

(a) to collect, retain, compile and analyse all information disclosed under sections 8, 9, 10, 11, 12 or 13;

(b) to conduct investigations into the commission of offences under this Act or under the Proceeds of Crime Act, 19...;

(c) to disseminate information to the relevant investigating authority where the Director is of the opinion that such information warrants a criminal investigation;

(e) to carry out analysis of information at the request of an investigating authority for the purposes of this Act;

(f) to supply information relating to criminal conduct to an investigating authority at the request of that authority;

(h) to perform any other function that the Centre is required or permitted to perform under this Act.

(2) The Centre must from time to time consult with the Money-laundering Policy Board concerning the manner in which the Centre’s functions are performed.

(1) The Minister must appoint a person to the office of Director: Financial Intelligence Centre.

(2) The Minister must appoint two or more persons to the posts of Deputy-Director or Deputy-Directors: Financial Intelligence Centre to perform, subject to the control of the Director any of the functions of the Director.

(3) The Director and Deputy-Directors hold office on the terms provided for under this Act or as prescribed by the Minister.

(b) officers and employees placed at the disposal of the Centre in terms of the laws governing the public service.

(a) require an accountable institution to provide an official of the Centre with access to records that the institution is required to keep under this Act;

(b) direct an accountable institution to suspend the carrying out of a transaction for a reasonable period to be determined by the Director after consultation with the accountable institution concerned for the purpose of performing a function contemplated in section 22;

(i) such institutions outside the Republic performing mainly similar functions to that of the Centre, as the Director deems fit; and

(d) engage persons having suitable qualifications and experience to perform services as consultants under written contracts; and

(e) exercise any other power that the Centre is required or permitted to exercise under this Act.

(3) The procedure to be followed in conducting an inquiry is determined by the Director at his or her discretion, having regard to the circumstances of each case.

(4) The proceedings and evidence at an inquiry is recorded in such manner as the Director reasonably considers will serve the objects of this Act.

(a) the Director may summon a person who is believed to be able to furnish information on the subject of the inquiry or to have in his or her possession or under his or her control a book, document or other object relating to that subject, to appear before the Director at a time and place specified in the summons, to be questioned or to produce that book, document or other object;

(b) the Director may question that person, under oath or affirmation administered by the Director, and examine or retain for further examination or for safe custody such a book, document or other object.

(b) contain particulars of the matter in connection with which the person concerned is required to appear before the Director;

(7) (a) The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a magistrate's court applies in relation to the questioning of a person in terms of subsection (5): Provided that such a person shall not be entitled to refuse to answer a question upon the ground that the answer would tend to expose him to a criminal charge.

(b) No evidence regarding any questions and answers contemplated in paragraph (a) is admissible in criminal proceedings, except in criminal proceedings where the person concerned stands trial on a charge contemplated in section 44 or in section 319 (3) of the Criminal Procedure Act, 1955 (Act 56 of 1955).

(1) If the Director has reason to suspect that an offence under this Act or under the Proceeds of Crime Act, 199..., has been or is being committed or that an attempt has been or is being made to commit such an offence, he or she may, subject to this section, at a reasonable time and without prior notice or with such notice as he or she may deem appropriate, enter a premises on or in which anything connected with that inquiry is or is suspected to be, and may—

(a) inspect and search those premises, and there make such enquiries as he or she may deem necessary;

(b) examine an object found on or in the premises which has a bearing or might have a bearing on the inquiry in question, and request from the owner or person in charge of the premises or from a person in whose possession or charge that object is, information regarding that object;

(c) make copies of or take extracts from a book or document found on or in the premises which has a bearing or might have a bearing on the inquiry in question, and request from a person suspected of having the necessary information, an explanation of an entry therein; and

(d) seize, against the issue of a receipt, anything on or in the premises which has a bearing or might have a bearing on the inquiry in question, or if he or she wishes to retain it for further examination or for safe custody.

(2) The premises referred to in subsection (1) may only be entered, and the acts referred to in subsection (1) may only be performed, by virtue of a warrant issued in chambers by a magistrate, regional magistrate or judge of the area of jurisdiction within which the premises is situated: Provided that such a warrant may be issued by a judge in respect of premises situated in another area of jurisdiction, if he or she deems it justified.

(3) A warrant contemplated in subsection (2) may only be issued if it appears to the magistrate, regional magistrate or judge from information on oath or affirmation that there are reasonable grounds for believing that anything referred to in subsection (1) is on or in such premises or suspected to be on or in such premises.

(4) A warrant issued in terms of this section may be issued on any day and shall be of force until—

(b) it is cancelled by the person who issued it or, if such person is not available, by a person with like authority; or

(5) (a) A person who acts on authority of a warrant issued in terms of this section may use such force as may be reasonably necessary to overcome any resistance against the entry and search of the premises, including the breaking of a door or window of such premises: Provided that such person must first audibly demand admission to the premises and state the purpose for which he or she seeks to enter such premises.

(b) The proviso to paragraph (a) does not apply where the person concerned is on reasonable grounds of the opinion that an object, book or document which is the subject of the search may be destroyed, tampered with or disposed of if the provisions of the said proviso are first complied with.

(6) A warrant issued in terms of this section must be executed by day unless the person who issues the warrant authorises the execution thereof by night at times which must be reasonable in the circumstances.

(7) A person executing a warrant in terms of this section must immediately before commencing with the execution—

(a) identify himself or herself to the person in control of the premises, if such person is present, and hand to such person a copy of the warrant or, if such person is not present, affix such copy to a prominent place on the premises; and

(b) supply such person at his or her request with particulars regarding his or her authority to execute such a warrant.

(8) The Director may without a warrant enter upon a premises and perform the acts referred to in subsection (1) if the person who is competent to do so consents to such entry, search, seizure and removal.

(9) An entry upon or search of a premises in terms of this section must be conducted with strict regard to decency and order, including—

(10) No evidence regarding questions and answers contemplated in subsection (1) is admissible in a subsequent criminal proceedings against a person from whom information in terms of that subsection is acquired if the answers incriminate him or her, except in criminal proceedings where the person concerned stands trial on a charge contemplated in section 45.

(11) If during the execution of a warrant or the conducting of a search in terms of this section, a person claims that anything found on or in the premises concerned contains privileged information and refuses the inspection or removal of such thing, the person executing the warrant or conducting the search must, if he or she is of the opinion that the thing contains information which is relevant to the inquiry and that such information is necessary for the inquiry, request the registrar of the Supreme Court which has jurisdiction or his or her delegate, to seize and remove that thing for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.

(1) The Director may by notice in the Government Gazette order any person specified in such an order to pay any amount of money which the Director reasonably suspects of being involved in the commission of an offence under this Act or under the Proceeds of Crime Act, 199..., into a restricted account.

(2) Any amount of money paid into a restricted account by virtue of an order contemplated in subsection (1) is repaid to the person against whom the order was made within a period of 20 days after the publication of the order in the Government Gazette, unless the Director, before the expiry of such period, applies for a restraint order in terms of the Proceeds of Crime Act, 199..., in respect of property that includes that amount.

(3) No person may in any manner deal with an amount of money paid into a restricted account before the expiry of the period of 20 days contemplated in subsection (2) or the making of a restraint order in respect of property that includes that amount, whichever may occur first, except with the permission of the Director and on the conditions that he or she reasonably deems fit.

The Director may, whether or not he or she holds an inquiry contemplated in section 25, and, if he or she does hold such an inquiry, at any time prior to, during or after the holding of the inquiry, if he or she is of the opinion that the facts disclose the commission of an offence by a person, notify the attorney-general concerned accordingly.

(1) If the Director receives a complaint, charge or allegation or has reason to suspect that an accountable institution has contravened or failed to comply with a provision of this Act, and that accountable institution—

(b) deposits with the Director such sum, not exceeding the maximum fine which may be imposed upon a conviction for the contravention or failure in question, as the Director may require or makes such arrangements or complies with such conditions with regard to securing the payment of such sum as the Director may require,

the Director may institute an inquiry into such a complaint, charge or allegation, and, on finding that such an accountable institution has contravened or failed to comply with a provision of this Act the Director may order the forfeiture by way of penalty of the whole or a part of the amount so deposited or secured.

(2) There is a right of appeal to the Minister from a determination or order of the Director under subsection (1), and such right must be exercised within a period of three months from the date of such determination or order.

(3) The imposition of a penalty under subsection (1) is not regarded as a conviction in respect of a criminal offence, but no prosecution for the relevant offence shall thereafter be competent.

(4) The Director may, whenever he or she is in doubt as to whether an inquiry should be held in connection with the complaint, charge or allegation concerned, consult with or seek information from the Attorney-General of the area in respect of which the court has jurisdiction.”

(1) The Director may, either generally or otherwise, delegate all or any of his or her powers or functions under this Act to a member of the staff of the Centre.

(2) A power or function so delegated, when exercised or performed by the delegate, is deemed to have been exercised or performed by the Director.

(3) The delegation of a power or function under this section does not prevent the exercise or performance of that power or function by the Director.

The Director must, as soon as is practicable after the last day in December each year, prepare and hand to the Minister a report of the Centre’s operations during the year ending on that day.

(a) a relevant investigating authority in respect of information in connection with a reportable transaction;

(b) an investigating authority, inside or outside Republic, in respect of which the Director reasonably believes that such information is required for the purpose of investigating criminal conduct;

(c) an authority outside the Republic performing mainly similar functions to that of the Centre in respect of which the Director reasonably believes that such information, or an analysis thereof, is required for the purpose of investigating criminal conduct;

(d) an accountable institution, in respect of such information as the Director deems fit, relating to a transaction reported by that institution;

(f) to the extent that he or she may be entitled to that information by virtue of an order of a court or under any law.

(2) If the Director is of the opinion that information is required as contemplated in subsection (1)(b) or (c) he or she must permit the person concerned in writing to obtain the required information.

(3) A permission given under paragraph (a) must specify the information or class of information to which the person concerned is entitled and the purpose for which such information is to be used.

(4) A person who is entitled to obtain information retained by the Centre may use that information only for the purposes of performing his or her functions.

No person may, directly or indirectly, communicate to another person information obtained

from the Centre except for the purpose of performing his or her duties or exercising his or her powers or for the objects of this Act.

There is hereby established a body to be known as the Money-laundering Policy Board.

(a) formulate, and revise from time to time, a national policy on combatting money-laundering;

(e) issue guidance notes to accountable institutions or classes of accountable institutions;

(f) advise the Minister on the granting of exemptions from a of the provision of this Act to an accountable institution or class of accountable institutions; and

(1) The Minister must appoint as members of the Board, the Director of the Centre and as many other persons as he or she deems appropriate and under the terms and conditions he or she deems fit.

(2) The Minister must make the appointments under subsection (1) from a list of persons nominated by —

(c) a public or other body associated with the supervision or regulation of an accountable institution or class of accountable institutions.

(3) The Minister must appoint a chairperson and vice-chairperson from the members of the Board.

(1) The Board may nominate one or more committees, that may, subject to the instructions of the Board, perform the functions the Board may determine.

(2) A committee consists of as many members of the Board, or as many members of the Board and as many other persons, as the Board deems necessary.

(5) The Board is not absolved from responsibility for the performance of any functions entrusted to a committee.

The Board must, as soon as is practicable after the last day in December each year, prepare and hand to the Minister a report of the Board’s affairs and functions during the year ending on that day.

40 Proceeding with business relationship or single transaction without obtaining required proof of identity

(1) An accountable institution that performs any action to give effect to a business relationship established, or single transaction concluded with a prospective client without having obtained the proof of identity required under section 2(1) or (2), as the case may be, shall be guilty of an offence.

(2) An accountable institution that concludes a transaction in the course of a business relationship without ascertaining the factors referred to in section 3(1) or, where applicable, having obtained the proof required under section 3(2), shall be guilty of an offence.

(1) An accountable institution that, having established a business relationship or concluded a single transaction, fails to keep the records required under section 4(1), or fails to keep such records in the prescribed manner, or destroys such records before the expiry of the period prescribed under section 4(3), shall be guilty of an offence.

(2) An accountable institution that, having concluded a transaction in the course of a business relationship, fails to keep the records prescribed under section 5(1), or fails to keep such records in the prescribed manner, or destroys such records before the expiry of the period referred to in section 5(3), shall be guilty of an offence.

A person who in any way tampers with information of which records are kept under section 4 or 5, shall be guilty of an offence.

An accountable institution that fails to report the prescribed information in respect of a reportable transaction to the Centre within the prescribed period shall be guilty of an offence.

An accountable institution that fails to formulate and implement an internal policy referred to in section 18, 19, 20 or 21 or fails to include an aspect prescribed under section 17 in such a policy, shall be guilty of an offence.

An accountable institution that fails to comply with a direction of the Centre to suspend the carrying out of a transaction shall be guilty of an offence.

(1) A person who has been summoned to appear before the Director and who, without sufficient cause, fails to appear at the time and place specified in the summons or to remain in attendance until he or she is excused by the Director from further attendance, shall be guilty of an offence.

(a) fails to produce a book, document or other object in his or her possession or under his or her control which he or she has been summoned to produce; or

(b) refuses to be sworn or to make an affirmation after he or she has been asked by the Director to do so;

(a) fails to answer fully and to the best of his or her ability a question lawfully put to him or her; or

(b) gives false evidence knowing that evidence to be false or not knowing or not believing it to be true;

(1) A person who obstructs or hinders the Director or another person in the performance of his or her functions in terms of section 26, shall be guilty of an offence.

(2) A person who, when he or she is asked in terms of section 26(1) for information or an explanation relating to a matter within his or her knowledge, refuses or fails to give that information or explanation or gives information or an explanation which is false or misleading, knowing it to be false or misleading, shall be guilty of an offence.

Any person who fails to comply with an order by the Director to pay any amount into a restricted account, shall be guilty of an offence.

Any person who deals with any money paid into a restricted account except as permitted by the Director or contravenes or fails to comply with any condition set by the Director in terms of section 28(3), shall be guilty of an offence.

(1) A person who uses information obtained from the Centre for any purpose that is not related to the performing of his or her functions under this or any other Act, shall be guilty of an offence.

(2) A person who communicates information obtained from the Centre to another person in any manner, except for the purpose of performing his or her functions under this Act, shall be guilty of an offence.

(a) that information has been disclosed to the Centre under the provisions of this Act; or

(b) that an investigation is being, or may be, conducted as a result of such a disclosure;

directly or indirectly brings information which is likely to prejudice such an investigation to the attention of another, shall be guilty of an offence.

(4) A person who, destroys or in any other way tampers with information kept by the Centre for the purposes of this Act, shall be guilty of an offence.

(1) A person who is convicted of an offence contemplated in section 40, 41, 44, 46 or 47 shall be liable to imprisonment not exceeding a period of five years or to a fine within the penal jurisdiction of the court.

(2) A person who is convicted of an offence contemplated in section 42, 43, 45, 48, 49 or 50 shall be liable to imprisonment for a period not exceeding fifteen years or to a fine within the penal jurisdiction of the court.

Nothing contained in this Act limits a power that an investigating authority may exercise under any other law, to obtain information.

(a) prescribing the documents or other means that may be accepted as proof of a person’s identity where a person is required to obtain proof of another person’s identity under this Act;

(b) prescribing the manner in which a person must ascertain another person’s identity where it is required under this Act;

(d) prescribing the manner in which records that a person is required under this Act to keep, must be kept;

(e) prescribing the amount in respect of which information relating to cash transactions must be disclosed;

(f) prescribing the amount in respect of which the transfer or conveyance of cash into or out of the Republic must be disclosed;

(g) prescribing the information that must be disclosed to the Centre in respect of a report made under section 8, 9, 10, 11 or 12;

(h) prescribing the manner in which information must be reported to the Centre under sections 8, 9, 10, 11 or 12;

(i) prescribing the aspects that must be addressed in an internal policy formulated under section 18, 19, 20, or 21; and

(j) providing for a matter, whether connected with a matter referred to in paragraphs (a) to (i) or not, that he or she considers necessary or expedient with a view to achieving the objects and purposes of this Act.

(2) The Minister must, when making regulations in respect of a matter referred to in paragraphs (a) to (i) of subsection (1), act in consultation with the Board.

(3) The Minister may make different regulations in respect of different accountable institutions, or classes of accountable institutions.

(1) The Minister may grant to an accountable institution, or class of accountable institutions, exemption from compliance with all or any of the provisions of this Act.

(2) The Minister may grant the exemption referred to in subsection (1) on the conditions and for the period he or she reasonably considers will serve the objects of this Act if he or she is satisfied that it is not reasonably practical for such institution or class of institutions to comply with such provision or provisions.

(3) The Minister must, when considering an application for an exemption, act in consultation with the Board.

No person may claim compensation from the Minister or an executive officer, employee, member or a person otherwise associated with the Centre or the Board for damage suffered as a consequence of any action taken under this Act or otherwise performed in good faith.

The laws mentioned in the Schedule to this Act are hereby amended to the extent indicated in the third column thereof.

This Act shall be called the Money-Laundering Control Act, 19..., and shall come into operation on a date fixed by the President by proclamation in the Gazette.

Act ... of 19...

Proceeds of Crime Act, 19...

1. Amendment of section 15 by substituting for subsection (1) the following subsection:

“The attorney-general concerned, or any public prosecutor authorised thereto in writing by him or her or the Director of the Office for Serious Economic Offences or any person authorised thereto in writing by him or her or the Director of the Financial Intelligence Centre or any person authorised thereto in writing by him or her may by way of an ex parte application apply to a competent superior court or a judge in chambers for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property to which the order relates.”.

2. Repeal of section 30.

3. Insertion before section 32 of the following section:

“31A Persons may report suspicions regarding proceeds of crime

(1) If a person has reason to suspect that property that comes into his or her possession may be the proceeds of crime, he or she may report such suspicion and the grounds upon which it rests to the Centre.

(2) (a) No duty of secrecy or confidentiality or any other restriction on the disclosure of any information as to the affairs of a client or customer of an accountable institution, whether imposed by any law, the common law or any agreement shall prevent a person from making a report under subsection (1).

(b) No liability based on a breach of a duty as to secrecy or confidentiality or any other restriction on the disclosure of any information as to the affairs of a client or customer, whether imposed by any law; the common law or any agreement, or based on any other cause of action, shall arise from a disclosure, made in good faith, of any information under subsection (1).”.

South African Law Commission

ANNEXURE A

PROPOSED BILL