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Section 29 of Fica

16 April 2004

To recap, section 29 of the Financial Intelligence Centre Act 38 of 2001 ('the Act') reads as follows:
"29. (1) A person who carries on a business, is in charge of, or manages a business or who is employed by a business and who knows or suspects that -
(a) The business has received or is about to receive the proceeds of unlawful activities:
(b) A transaction or series of transactions to which the business is a party -
(i) facilitated or is likely to facilitate the transfer of the proceeds of unlawful activities:
(ii) has no apparent business or lawful purpose;
(iii) is conducted for the purpose of avoiding giving rise to a reporting duty under this Act; or
(iv) may be relevant to the investigation of an evasion or attempted evasion of a duty to pay any tax, duty or levy imposed by legislation administered by the Commissioner for the South African Revenue Service; or
(c) the business has been used or is about to be used in any way for money-laundering purposes."

Knowing or suspecting per se does not give rise to the obligation. The specific transactions in ss (a), (b) and (c) must exist as a link between the business of the person reporting and the offending act or transaction. The author points out that the concept of a 'suspicious and unusual transaction' is ambiguous and difficult to understand since it is not defined in the Act. Moreover she finds the above categories vague.

The article ends with what constitutes 'knowledge' or 'suspicion' and this includes wilful ignorance and the tests therefor.

De Rebus website

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