A closer look at section 29 of the FIC Act
In an earlier article on the Financial Intelligence Centre Act (FICA), we explained that the main objective of the Act is to combat money laundering and the financing of terrorist activities. In this article, we’ll continue the discussion in terms of the duty of accountable institutions to report suspicious transactions to the Finance Intelligence Centre (FIC).
What does the Act stipulate?
Section 29 of the Act outlines that accountable institutions are obligated to report unusual transactions to the FIC. The onus to report these suspicious or unusual activities is placed on any person who carries on, is in charge, manages or is employed by a business. In terms of the Act, the term “business” is interpreted broadly and is deemed to be any person associated with a commercial undertaking as an owner, manager or employee. It’s therefore evident that the obligation to report in terms of section 29 applies to a broad group of people.
When does this obligation apply?
According to the Act, the obligation applies when “a person becomes aware of something or circumstances arise in which a person can be reasonably expected to be aware or reasonably expected to suspect something”.[1] The “something” relates to where the business has:
- received funds stemming from unlawful activities
- received property that is linked to an offence of terrorist financing
- been used for money laundering purposes
- been used to assist an offence being committed that relates to money laundering or terrorist financing.[2]
The onus to report extends beyond a person having actual knowledge of unlawful activity to when a person “[suspects] but cannot prove”.[3] The onus will thus arise when, for example, there are unexplained international transfers received from a client or where deposits are made with the immediate request to transfer the funds elsewhere. FICA has provided a guidance note to accountable institutions to assist them in identifying suspicious or unusual transactions. This note can be found on the FIC website.
The onus arises despite the monetary value of the transaction. It’s also important to note that the relevant party may not be notified that the suspicious or unusual activity has been reported to the FIC.
[1] Financial Intelligence Centre Guidance Note 4 on Suspicious Transactions Reporting paragraph 2.1
[2] Financial Intelligence Centre Guidance Note 4 on Suspicious Transactions Reporting paragraph 2.3
[3] Shabaan Bin Hussein and Others v Chnong Fook Kam and Other [1970] AC 942 (PC) ([1969] 3 ALL ER 1627) 948B.
Written by Wessel de Kock
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