By Linda Ensor
Business Day

The protracted fight between pro-Gupta lobbyists and the Treasury, backed by the country’s top legal brains, over the Financial Intelligence Centre Amendment Bill will play out in Parliament on Wednesday when the finance committee holds public  earings on it.

On one side there will be the Black Business Council (BBC), backed by the Progressive Professionals Forum (PPF) led by Mzwanele Manyi, which will call for the bill to be scrapped in its entirety. The bill was referred back to Parliament by President Jacob Zuma because of concerns over its constitutionality.

There were suggestions on Tuesday that their case will be supported by the security cluster of departments, which would argue that SA’s security and intelligence agencies have sufficient means at their disposal to combat money laundering and the  financing of terrorism, the main aims of the bill.

The bill also seeks to strengthen the monitoring by banks and other accountable institutions of politically exposed persons and any of their suspicious and unusual transactions.

Manyi said that if the BBC and the PPF failed to get the bill scrapped by Parliament, they would challenge it in the Constitutional Court.

It was the BBC that asked Zuma not to sign the bill, which he did not do for nine months after it was adopted by Parliament in May 2016. BBC chairman Sello Rasethaba described the bill as a “dangerous” piece of legislation in terms of its impact on the rule of law and constitutionally protected rights. On the other side will be the Treasury, backed by a range of bodies such as Business Unity SA, the Association of Black Securities and Investment Professionals, the Banking Association of SA, the Council for the Advancement of the South African Constitution, Business Leadership SA and Corruption Watch. These will be supported by three senior counsel. The three senior counsel who have submitted legal opinions are Jeremy Gauntlett QC for the Treasury, Ishmael Semenya for Parliament and Gilbert Marcus for the Banking Association.

Zuma said the bill’s provision for warrantless searches could be unconstitutional as it represented an invasion of privacy.

The BBC and PPF will take issue on Wednesday with the committee’s decision to limit discussions to the constitutional concern raised by Zuma. Manyi said that while this was technically the correct approach in terms of the joint rules of Parliament, the committee would be acting in “bad faith” if it failed to consider the objections to the bill in its entirety.

Gauntlett said in his opinion that the amendment bill addressed the constitutional defect in the Financial Intelligence Centre Act (Fica) which had been identified by the Constitutional Court.

He noted that the court had ruled that provision for warrantless searches per se was justifiable in exceptional circumstances and the bill was compliant in this regard as it contained implicit and explicit restrictions on their use. However, more explicit redrafting of certain clauses would put these clauses “beyond legitimate debate”, he said.

The use of warrantless searches in private homes could be more expressly circumscribed by stipulating this could occur only when it was reasonably believed that the premises were being used for business purposes by an accounting or reporting institution as defined by the act.

This would tighten the restriction on warrantless searches of private homes.

Other legal opinions were that the provision for warrantless searches did not unreasonably or unjustifiably infringe on the right to privacy. Corruption Watch observed that the powers of inspectors were closely circumscribed in the bill. The formulation of the section of the act dealing with warrantless searches by the Constitutional Court itself was almost identical to the provision in the bill being challenged by the president.

“The president is, therefore, challenging a section which is already constitutionally compliant,” Corruption Watch said.