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Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001)

1. Definitions

 

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

 

"accountable institution"

means a person referred to in Schedule 1;

 

"administrative sanction"

means an administrative sanction contemplated in section 45C;

[Definition substituted by section 1(a) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"appeal board"

means the appeal board established by section 45E;

 

"authorised officer"

means any official of—

(a) an investigating authority authorised by the head of that investigating authority to act under this Act;
(b) the National Prosecuting Authority authorised by the National Director of Public Prosecutions to act under this Act;
(c) an intelligence service authorised by the Director-General of that service to act under this Act; or
(d) the South African Revenue Service authorised by the Commissioner for that Service to act under this Act;
(e) the Independent Police Investigative Directorate authorised by the Executive Director of that Directorate to act under this Act;
(f) the Intelligence Division of the National Defence Force authorised by the Inspector-General of the National Defence Force to act under this Act;
(g) a Special Investigating Unit authorised by the head of the Special Investigating Unit to act under this Act;
(h) the office of the Public Protector authorised by the Public Protector to act under this Act; or
(i) an investigative division in an organ of state authorised by the head of the organ of state to act under this Act;

[Definition substituted by section 1(b) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"bearer negotiable instrument"

means any instrument that may on demand by the bearer thereof be converted to the currency of the Republic or that of another country, and includes, amongst others, cheques, promissory notes or money orders;

[Definition substituted by section 1(c) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"beneficial owner"

in respect of a legal person, means a natural person who, independently or together with another person, directly or indirectly—

(a) owns the legal person; or
(b) exercises effective control of the legal person;

[Definition inserted by section 1(d) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"business relationship"

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

 

"cash"

means—

(a) coin and paper money of the Republic or of another country that is designated as legal tender and that circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue;
(b) travellers’ cheques;

 

"Centre"

means the Financial Intelligence Centre established by section 2;

 

"client"

in relation to an accountable institution, means a person who has entered into a business relationship or a single transaction with an accountable institution;

[Definition inserted by section 1(e) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"Council"

[Definition deleted by section 1(f) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"Director"

means the Director of the Centre appointed in terms of section 6;

 

"domestic prominent influential person"

means a person referred to in Schedule 3A.

[Definition inserted by section 1(g) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"entity"

has a corresponding meaning with the definition in section 1 of the Protection of constitutional Democracy against Terrorist and Related Activities Act, 2004;

[Definition substituted by section 1(h) of the Foreign Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"foreign prominent influential person"

means a person referred to in Schedule 3A;

[Definition inserted by section 1(i) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"Independent Police Investigative Directorate"

means the Independent Police Investigative Directorate established by section 3 of the Independent Police Investigative Directorate Act, 2011 (Act No. 1 of 2011);

[Definition inserted by section 1(i) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"inspector"

means a person appointed in terms of section 45A;

 

"Intelligence Division of the National Defence Force"

means the Intelligence Division of the National Defence Force referred to in section 33 of the Defence Act, 2002 (Act No. 42 of 2002);

[Definition inserted by section 1(j) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"intelligence service"

means the State Security Agency referred to in section 3 of the Intelligence Services Act, 2002 (Act No. 65 of 2002);

[Definition substituted by section 53 of the General Intelligence Laws Amendment Act, 2013 (Act No. 11 of 2013)]

 

"investigating authority"

means an authority that in terms of national legislation may investigate unlawful activities;

 

"investigative division in an organ of state"

means an investigative division in an organ of state in the Republic having a function by law to investigate unlawful activity within the organ of state;

[Definition inserted by section 1(k) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"legal person"

means any person, other than a natural person, that establishes a business relationship or enters into a single transaction, with an accountable institution, and includes a person incorporated as a company, close corporation, foreign company or any other form of corporate arrangement or association, but excludes a trust, partnership or sole proprietor;

[Definition inserted by section 1(k) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"Minister"

means the Minister of Finance;

 

"money laundering" or "money laundering activity"

means an activity which has or is likely to have the effect of concealing or disguising the nature, source, location, disposition or movement of the proceeds of unlawful activities or any interest which anyone has in such, proceeds, and includes any activity which constitutes an offence in terms of section 64 of this Act or section 4, 5 or 6 of the Prevention Act;

 

"National Commissioner"

means the National Commissioner of the South African Police Service referred to in section 207 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

 

"National Director of Public Prosecutions"

means the National Director of Public Prosecutions referred to in section 179 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

 

"National Prosecuting Authority"

means the National Prosecuting Authority referred to in section 179 of the Constitution of the Republic of South Africa, 1996, and established in terms of section 2 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

[Definition inserted by section 1(l) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"non-compliance"

means any act or omission that constitutes  a failure to comply with a provision of this Act or any order, determination or directive made in terms of this Act and which does not constitute an offence in terms of this Act, and "fails to comply", "failure to comply", "non-compliant" and "not complying" have a corresponding meaning;

[Definition substituted by section 1(m) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"offence relating to the financing of terrorist and related activities"

means an offence under section 4 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);

[Definition inserted by  section 1(n) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

''offence relating to the financing of terrorist and related activities"

[Definition deleted by section 1(s) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"prescribed"

means prescribed by the Minister by regulation in terms of section 77;

 

"Prevention Act"

means, the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);

 

"proceeds of unlawful activities"

has the meaning attributed to that term in section 1 of the Prevention Act;

 

"property"

has the meaning attributed to that term in section 1 of the Prevention Act;

 

"Public Protector"

means the Public Protector referred to in Chapter 9 of the Constitution of the Republic of South Africa, 1996;

[Definition inserted by  section 1(o) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"reporting institution"

means a person referred to in Schedule 3;

 

"Risk Management and Compliance Programme"

means the programme contemplated in section 42(1);

[Definition inserted by  section 1(p) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"single transaction"

means a transaction—

(a) other than a transaction concluded in the course of a business relationship; and
(b) where the value of the transaction is not less than the amount prescribed, except in the case of section 20A;

[Definition substituted by  section 1(q) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"South African Revenue Service"

means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);

 

"Special Investigating Unit"

means the Special Investigating Unit established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996);

[Definition inserted by  section 1(r) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"supervisory body"

means a functionary or institution referred to in Schedule 2;

 

"terrorist and related activities"

has the meaning assigned to it in section 1 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);

 

"this Act"

includes any regulation made or exemption given under this Act;

[Definition substituted by section 1(g) of the Financial Intelligence Centre Amendment Act, 2008 (Act No. 11 of 2008)]

 

"transaction"

[Definition deleted by section 1(s) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"trust"

means a trust defined in section 1 of the Trust Property Control Act, 1988 (Act No. 57 of 1988), other than a trust established—

(a) by virtue of a testamentary disposition;
(b) by virtue of a court order;
(c) in respect of persons under curatorship; or
(d) by the trustees of a retirement fund in respect of benefits payable to the beneficiaries of that retirement fund,

and includes a similar arrangement established outside the Republic;

[Definition inserted by section 1(t) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]

 

"unlawful activity"

has the meaning attributed to that term in section 1 of the Prevention Act.

 

(2) For the purposes of this Act a person has knowledge of a fact if—
(a) the person has actual knowledge of that fact; or
(b) the court is satisfied that :
(i) the person believes that there is a reasonable possibility of the existence of that fact, and
(ii) person fails to obtain information to confirm or refute the existence of that fact.

 

(3) 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—
(a) the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and
(b) the general knowledge, skill, training and experience that he or she in fact has.