Why are we waiting?


President Zuma is holding off signing the new Fica bill passed by Parliament.   

For months, South Africans have watched the standoff between the Treasury and the Presidency unfold, with much of the public’s focus on Minister Pravin Gordhan’s longevity in Cabinet. This has more broadly resulted in a crisis in government – one which has slowed its attempts to pass more comprehensive legislation to tackle financial crime and the financing of terrorism.

Pravin Gordhan

The Financial Intelligence Centre Amendment bill, intended to update South Africa’s anti-corruption and anti-money-laundering laws, was passed by both the National Assembly and the National Council of Provinces in May, but has still not been signed into law by President Jacob Zuma.

This is despite concerns that South Africa’s current legislation may not meet obligations set by the Financial Action Task Force (FATF) – a multinational anti-money-laundering body of which South Africa is a member – and that terrorist groups may be accessing funds and recruiting members in South Africa.

In addition to this, in March 2014 the bribery working group of the Organisation for Economic Co-operation and Development (OECD) raised concerns over the limited investigation and prosecution of foreign bribery in South Africa. 

The widely anticipated pushback from the financial services industry, which would face increased obligations and regulation (and therefore extra costs and potentially lost business opportunities) did not materialise. Despite initial reservations, the Banking Association of South Africa (BASA) has in fact urged Zuma to sign the Fica bill into law.

The loudest voices in the opposition to this increased legislation have come from former government apparatchik Jimmy Manyi’s Progressive Professionals Forum.

In September, the ANC Youth League  joined the chorus opposing the Fica bill, declaring that it was, “perpetuated by Monopoly White Capital”, and was an attempt by the government to “abdicate” its responsibility to fight financial crime. For industry insiders and political commentators alike these protestations – likely fuelled by self-interest – seem bizarre, especially in the light of growing international consensus over the safeguarding of financial systems and of increasing transparency and accountability in these systems.

Jacob Zuma

Much like the broader standoff between Gordhan and Zuma, the Presidency’s slow response to the new Fica bill highlights both the political fissures present in Zuma’s administration, as well as the slow progress being made to tackle bribery, corruption and political patronage networks. This stalemate represents a hindrance to inculcating a culture of corporate compliance and securing South Africa from organised crime, extremist groups and money-laundering operations.

The new Fica bill is a comprehensive amendment to the current Financial Intelligence Centre Act (Fica), which in 2003 established the Financial Intelligence Centre (FIC), the state agency empowered to identify and investigate the unlawful proceeds of crime passing through South Africa’s financial system, and the regulations imposed on financial institutions and others to implement anti-money-laundering and identity verification controls. The amendment proposes several new obligations on the private sector, bringing the regulations in line with some FATF recommendations and international best practice:

• Flexible and ongoing due diligence:

For most South Africans, the acronym “Fica” recalls an often tedious journey through regulations, paperwork and bank queues to verify addresses and identities. This has become a staple of South African consumer life, but the amendment bill will empower accountable financial institutions to adopt a more flexible and nuanced way of complying with customer due diligence obligations. For example, the amendment suggests that institutions adopt a risk-focused approach, specifically tailored to the customers, countries, products and delivery channels being used at any given time. This may be a reprieve for the many South Africans who are excluded from the formal economy and will shift the focus of financial institutions from compliance box-ticking to understanding and targeting specific suspicious activity and risks. Accountable institutions will also be required to implement ongoing Know-Your-Customer (KYC) due diligence checks, scrutinising transactions in respect of the client’s source of wealth and individualised risk profile.

• Increasing transparency in the financial system:

Many wealthy individuals make use of trusts, partnerships or corporate entities to obscure their ownership of a specific asset or involvement in a transaction. The new bill will thus require institutions that fall within its ambit to identify and verify the beneficial ownership and control of juristic persons. This requirement also comes at a time when there have been growing international concerns over the use of opaque corporate vehicles, often in offshore jurisdictions, to engage in illicit transactions and avoid tax.

• Identifying “Prominent Persons”:

The Fica amendment bill defines two new classes of customers, namely “domestic prominent influential persons” and “foreign prominent public officials”. These individuals, and their family and associates, will be subject to enhanced due diligence and source of wealth checks by prescribed institutions, bringing local regulations in line with the monitoring of so-called “Politically Exposed Persons” under FATF requirements. Of note, the amendment extends beyond politically influential individuals, to include senior private sector executives in the employ of high-turnover companies or companies that contract with the state. 

• Inculcating a culture of compliance:

In terms of the Fica amendment bill, all entities falling within the ambit of the legislation will be required to develop and implement a Risk Management and Compliance Programme – internal rules and processes aimed at meeting the obligations set by the amendment, focused more broadly on preventing terrorism financing and money laundering. All due diligence, Know-Your-Customer checks and internal compliance procedures must be documented by accountable institutions, and employees must be trained to recognise risks and apply Fica consistently.

The amendment would effectively modernise regulations on financial crime, and bring the country in line with its international obligations. Of course, these obligations are wildly unpopular among those who might find themselves classified as “prominent persons”, subject to greater scrutiny of their financial affairs and association with politicians and the state.

The loud and unfounded criticism provided by the amendment bill’s political opponents may provide the clearest indication of why it should be signed into law – and why businesses must take a robust, risk-focused approach to cleaning up the economy. (See Editorial).

Thorne Godinho is an analyst at S-RM, an international risk consulting company with offices in Cape Town.

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Submitted by : Barry Midgley of DURBAN on 2016-11-01 15:55:25
Thorne Godinho article at first blush seems reasonable as it pokes fun at Jacob with an inference that these new laws will incriminate him.
I nearly bought it but on reflection Jacob has proved he is above the law and the financial sector would itself make him look decidedly straight by comparison. The Financial Intelligence Centre Amendment Bill is an unnecessary addition to its predecessor. FICA as it now stands is a good example of putting the fox in charge of the hen house.
Mr. Nose has covered all sorts of shenanigans by South Africa’s financial institutions which pale into insignificance when compared to their overseas compadres who in some cases are their owners. Libor rigging, currency manipulation and lack of price discovery are but a few of the crimes committed by Banks. Added to this, their accomplices, those shiny arse bookkeepers otherwise known as accountants compound the problem. They have no idea of the value of the derivatives or any other of the so-called products the Banks trade. They then apply a liberal dose of their maundering and come with phrases such as “Ring fence”, "grow the business organically while reducing their carbon foot print" and apply new "stimulus packages" to create "stability in a volatile market". The Fed came up with "quantitative easing" – sounds like a suppository.
The “septic tanks” (speaking in the vernacular) are great on recommending all sorts of measure to protect us from “terrorists” and drug lords, when what we need most are measures to protect us from the predations of banks. We were required to put extra security around our harbours, report money laundering etc. but when it comes to sorting out the problems back home we are told that prosecuting the banks would destabilise the world economy – that they are "too big to be allowed to fail". That does not stop the USA and in particular Obama ordering drone strikes anywhere and often killing innocent civilians including USA citizens. He has no respect for international law. Libya the best developed country in Africa was reduced to rubble on the pretext of saving 10,000 people allegedly going to die at the hand of Gadhafi. The fact that 500,000 people died as a result of NATO’s no fly zone over the country is, apparently, irrelevant. What right has he to decide who should rule Syria? If the Syrian rulers are that bad, why then support Saudi Arabia? Then there is Yemen where the slaughter goes on and no one gives a shit.
The South African Reserve Bank, like the Fed in America, is a private bank. When the Big Five Banks, without admitting liability, are fined, the fines find their way to the Fed which in turn is owned by, inter alia, the Big Five. You got to hand it to the wankers (I think that’s the preferred consonant) they got the POLS (people of lesser standing) captivated by their antics and rejoicing that they were at least fined – fooled again.
Mr. Carney of the BOE has by some miracle come to the conclusion that 2% is the right number for inflation. The economists when asked why this is the magic number, say you need 2% to grease the wheels of the economy, adding – the cherry on the top – that this will square the circle. Yes, you got it right: it is pure bollocks!
We don’t need more legislation, we need less with better enforcement. If the Gordhan had done his job properly when he was head of SARS we would have some semblance of order. Instead the software is pathetic and favours abound. I am glad to see Meeru Naidu was found innocent of all charges but it is regrettable that the bureaucrats at SARS, NPA and Metro were not taken to task. How is it that the prosecutor is put on ice for two years and the colluding parties walk free? It reminds one of Nkandla – I don’t really care what the budget was or should have been, I worry who authorised the payments once the budget was surpassed. It was certainly not Jacob.
What is the point of more legislation when we can’t/won’t apply the law?
Every time Banks are involved they exploit FICA by adding what they think is appropriate – challenge them and you are told that is a head office decision. Ask for the FICA details of the CEO, manager, etc. and they find every excuse why you can’t report them. Look back in the RSA history and not much has changed. Ernest Oppenheimer was backed by J.P. Morgan to take control of the diamond business. Ernie was no slouch and he got the government to provide the security for his operation (IDB unit of the SAPS – and yes the muppets must pay) while he created what is most probably the best advertising slogan ever – diamonds are a girl’s best friend. The monopoly went global and if you wanted to get in the diamond business you had to be invited – I want that you should be happy! Dear Lord what a cosy arrangement until diamonds were discovered in areas de Beers had little or no control. Suddenly there is a new diamond on the market – Blood Diamond. Anyone trading in such unaccredited stones was supporting terrorists and gangsters who were undermining legitimate governments – please pull the other one. To complete the picture, when JP died he was thought to be one of the richest men in the world. It turns out he was a front for the Rothschild’s – my, my, what a surprise. So it is small wonder that our own “ever so clever” Trevor is now a director of the Rothschild Bank in Joeys and his squeeze after ripping off the railway pension fund is head of another bank – you must keep it in the family my boy.
As far as I’m aware there is only one country that dealt with financial institutions appropriately – Iceland. There were no bailouts or haircuts. The criminal speculators or heads of various financial institutions were put in jail. A tiny country in terms of population but boy do they have big cajones!

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