| (1) |
The Centre or a supervisory body may impose an administrative sanction on any accountable institution, reporting institution or other person to whom this Act applies when satisfied on available facts and information that the institution or person— |
| (a) |
has failed to comply with a provision of this Act or any order, determination or directive made in terms of this Act; |
| (b) |
has failed to comply with a condition of a licence, registration, approval or authorisation issued or amended in accordance with section 45(1B)(V); |
| (d) |
has failed to comply with a non-financial administrative sanction imposed in terms of this section. |
| (2) |
When determining an appropriate administrative sanction, the Centre or the supervisory body must consider the following factors: |
| (a) |
The nature, duration, seriousness and extent of the relevant noncompliance; |
| (b) |
whether the institution or person has previously failed to comply with any law; |
| (c) |
any remedial steps taken by the institution or person to prevent a recurrence of the non-compliance; |
| (d) |
any steps taken or to be taken against the institution or person by— |
| (i) |
another supervisory body; or |
| (ii) |
a voluntary association of which the institution or person is a member; and |
| (e) |
any other relevant factor, including mitigating factors. |
| (3) |
The Centre or supervisory body may impose any one or more of the following administrative sanctions: |
| (a) |
A caution not to repeat the conduct which led to the non-compliance referred to in subsection (1); |
| (c) |
a directive to take remedial action or to make specific arrangements; |
| (d) |
the restriction or suspension of certain specified business activities; or |
| (e) |
a financial penalty not exceeding R10 million in respect of natural persons and R50 million in respect of any legal person. |
| (4) |
The Centre or supervisory body may— |
| (a) |
in addition to the imposition of an administrative sanction, make recommendations to the relevant institution or person in respect of compliance with this Act or any order, determination or directive made in terms of this Act; |
| (b) |
direct that a financial penalty must be paid by a natural person or persons for whose actions the relevant institution is accountable in law, if that person or persons was or were personally responsible for the non-compliance; |
| (c) |
suspend any part of an administrative sanction on any condition the Centre or the supervisory body deems appropriate for a period not exceeding five years. |
| (5) |
Before imposing an administrative sanction, the Centre or supervisory body must give the institution or person reasonable notice in writing— |
| (a) |
of the nature of the alleged non-compliance; |
| (b) |
of the intention to impose an administrative sanction; |
| (c) |
of the amount or particulars of the intended administrative sanction; and |
| (d) |
that the institution or person may, in writing, within a period specified in the notice, make representations as to why the administrative sanction should not be imposed. |
| (a) |
After considering any representations and the factors referred to in subsection (2), the Centre, subject to paragraph (c). or supervisory body may impose an administrative sanction the Centre or supervisory body considers appropriate. |
| (b) |
Upon imposing the administrative sanction the Centre or supervisory body must, in writing, notify the institution or person— |
| (i) |
of the decision and the reasons therefor; and |
| (ii) |
of the right to appeal against the decision in accordance with section 45D. |
| (c) |
The Centre must, prior to taking a decision contemplated in paragraph (a), consult the relevant supervisory body, if applicable. |
| (a) |
Any financial penalty imposed must be paid into the National Revenue Fund within the period and in the manner as may be specified in the relevant notice. |
[Section 45C(7)(a) substituted by section 33 of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (b) |
If the institution or person fails to pay the financial penalty within the specified period and an appeal has not been lodged within the required period, the Centre or supervisory body may forthwith file with the clerk or registrar of a competent court a certified copy of the notice contemplated in subsection (6)(b), and the notice thereupon has the effect of a civil judgment lawfully given in that court in favour of the Centre or supervisory body. |
| (8) |
An administrative sanction contemplated in this section may not be imposed if the respondent has been charged with a criminal offence in respect of the same set of facts. |
| (9) |
If a court assesses the penalty to be imposed on a person convicted of an offence in terms of this Act, the court must take into account any administrative sanction imposed under this section in respect of the same set of facts. |
| (10) |
An administrative sanction imposed in terms of this Act does not constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure Act. 1977 (Act No. 51 of 1977). |
| (11) |
Unless the Director or supervisory body is of the opinion that there are exceptional circumstances present that justify the preservation of the confidentiality of a decision the Director or supervisory body must make public the decision and the nature of any sanction imposed if— |
| (a) |
an institution or person does not appeal against a decision of the Centre or supervisory body within the required period; or |
| (b) |
the appeal board confirms the decision of the Centre or supervisory body. |
[Section 45C inserted by section 16(b) of the Financial Intelligence Centre Amendment Act, 2008 (Act No. 11 of 2008)]
Public Service Commission Act, 1997
