By Linda Ensor
Business Day

Public pressure has been mounting for Parliament’s finance committee to open Wednesday’s discussion on the Financial Intelligence Centre Amendment (Fica) Bill beyond the limited constitutional concern raised by President Jacob Zuma when he referred it back to Parliament late last year.
Committee chairman Yunus Carrim has been adamant — and reiterated his point of view during a committee meeting on Tuesday — that the public hearings on Wednesday would be limited to the issue of warrantless searches. The question to be addressed was whether the powers the amendment bill gave inspectors to conduct searches were too wide.

Zuma expressed the concern that warrantless searches could be an invasion of privacy and therefore unconstitutional.
The Progressive Professionals Forum (PPF) led by pro-Gupta lobbyist Mzwanele Manyi has urged the committee to open the discussion to other aspects of the bill, which is aimed at strengthening the monitoring by banks and other accountable institutions of politically exposed persons and their suspicious and unusual transactions.

Carrim said during a committee meeting on Tuesday that the committee had been “battered” and accused of being “unresponsive to the public” and “difficult”, which was not true as the public hearings on the Fica Bill would be the first on a bill referred back to Parliament by the president.
“I am not going to allow this committee to be abused,” Carrim stated.

Extensive public hearings were also held by the committee on the bill when it was first presented to Parliament.
He stressed that the joint rules of Parliament required that Parliament only addressed the issue raised by the president and not open up the entire bill for reconsideration as it had already been adopted by Parliament. The issues in question were legal and constitutional issues and not policy ones.

Eight oral presentations are scheduled to be heard on Wednesday including by the PPF, the Council for the Advancement of the South African Constitution (Casac), the Black Business Council, the Banking Association of Southern Africa, Corruption Watch and the Association of Black Securities and Investment Professionals (Absip).

Legal heavyweights will also be present to deliver legal arguments as to whether the bill’s provision for warrantless searches is unconstitutional. Jeremy Gauntlett QC has drawn up an opinion for the Treasury and advocate Ishmael Semenya SC for Parliament. Casac will also submit a legal opinion.

Carrim emphasised the importance of the bill not being vulnerable to constitutional challenge.

Business Leadership SA has expressed support for a swift signing into law of the bill which it said in a media release was “of pivotal importance and the objections to it are without merit”.

“This bill is about the prevention of money laundering, white collar crime, corruption, terrorism and other nefarious financial activities. South Africa has been a global leader on these issues but we now risk becoming a pariah. It is vital that the act is signed into law as soon as possible. We believe there is no legal or constitutional reason it cannot be signed into law,” BLSA deputy chairman Bonang Mohale said in a statement. “This legislation is central to the efforts of government, business and labour to avert a downgrade to junk and enhance our standing in the global economy.”

Mohale said the amendment bill strengthened the oversight of the financial sector and made SA compliant with its international obligations.

“BLSA believes that none of the objections raised are well-founded in law or policy. This includes the single concern raised by the President, namely that the that section 45B(1C) of the amendment may be impermissibly overbroad, and may unjustifiably violate the right to privacy, because it allows for warrantless searches.

“Similar provisions for warrantless searches exist in other South African legislation, such as the Criminal Procedures Act, and are compatible with the constitution. Further, the powers to be given to the Financial Intelligence Centre in respect of warrantless searches extend only to accountable institutions as defined in the FIC Act and do not extend to private individuals. This demonstrates that the clause is not overly broad.

“We note that no concerns over the constitutionality of the amendment were brought to the attention of Parliament during the process of its development. This process included extensive public consultations, during which submissions from multiple interested stakeholders were received or heard”, Mohale said.