By Linda Ensor
Business Day

President Jacob Zuma has denied that he unduly delayed dealing with the Financial Intelligence Centre Amendment (Fica) Bill, which he sent back to Parliament in November 2016 because of concerns over the constitutionality of warrantless searches.

Parliament adopted the bill six months earlier in May, leading to accusations that Zuma was stalling under pressure from the Progressive Professionals Forum (PPF) and the Black Business Council (BBC), which appealed to him in July and September respectively not to sign the bill into law.

The opposition EFF appealed to Zuma in September to assent to the bill urgently.

Parliament’s finance committee held hearings on the bill on Wednesday, during which the BBC and the PPF described it as a “dangerous” piece of legislation which needed to be scrapped in its entirety.

The committee on the advice of senior council and Parliament’s own legal advisers will only consider the constitutionality of the clause providing for warrantless searches and will not open up the whole bill for review.

Zuma’s denial of inordinate delays came in an affidavit signed on November 28 and filed in the Constitutional Court in response to an application by the Council for the Advancement of the South African Constitution (Casac) for an order compelling Zuma to deal with the bill, which is required for SA to meet its international obligations to the Financial Action Task Force.

The case fell away as Zuma referred the bill back to Parliament on the same day as he filed his affidavit. Casac representatives mentioned the affidavit during their presentation to the committee on the bill.

Zuma said in his replying affidavit that the Presidency had received the Fica Bill on June 27. Five legal officials in the Presidency then proceeded to evaluate its constitutionality before briefing the Presidency’s legal advisers

“Several objections against the signing of the Fica Bill were received at different times.

“Each time an objection was received the Fica Bill had to be reconsidered in light of the objection. The legal advisers would also repeat the process of reconsideration,” Zuma said.

The PPF and BBC objections were, however, more or less identical.

The Presidency also had to engage with the Treasury on the bill. Zuma said dealing with the objections and the discussions on the bill had taken place in September and October.

“Given the importance of the bill, its complexity and novel provisions such as the concepts of ‘domestic prominent influential person’ and ‘family members and known associates’ and the likely adverse impact of these and other provisions of the bill on a number of constitutionally protected rights, the legal advisers decided to obtain legal advice. Obtaining external legal advice and considering it took some time,” Zuma said.

The bill provides that prominent influential persons, their family members and known associates, as well as those doing business with the state will be subjected to more stringent monitoring by banks.
Zuma said it was on the basis of all the internal and external legal advice that he had decided to refer the bill back to Parliament.

DA finance spokesman David Maynier applied under the Promotion of Access to Information Act to get the Presidency’s record of decision on the bill and the legal advice Zuma relied on in sending it back to Parliament but this was refused by the Presidency.

The president also points out in his affidavit that the Constitution does not prescribe time limits within which the president has to decide whether to assent to a bill or refer it back
to Parliament. “I accept that constitutional obligations ought to be fulfilled within a reasonable time without undue delay but deny that I have unduly delayed in this case given the nature and content of the Fica Bill.”

Zuma said that a court would have needed roughly the same amount of time he took to decide on the bill’s constitutionality.

The BBC’s letter to Zuma, attached to his affidavit, expresses its concern that the bill could be abused and carried the danger of “potentially unfounded allegations destroying reputations of individuals or limiting their ability to conduct their business and of selective reporting by reporting entities to the Financial Intelligence Centre”.

These reporting entities, the letter said, could be influenced by prejudices and biases.

The BBC said the Fica Bill would do away with the long established principle of audi alteram partem, or hear the other side. BBC president Danisa Baloyi said during the public hearing that about 10 BBC members had their bank accounts closed without reasons being given.