This research examines an attorney’s reporting obligation in terms of section 29 of the Financial Intelligence Centre Act 38 of 2001 (FICA) to report suspicious and unusual transactions, which are not subject to legal professional privilege. In order to contextualise this reporting obligation and to understand its application, terminology such as the proceeds of crime and money laundering is explained. Global best practice anti-money laundering guidelines, as manifested in the Financial Action Task Force (FATF) recommendations, are evaluated as well as typologies related to attorneys as targets for money laundering purposes. The establishment and development of the domestic regulatory and legislative frameworks to address the challenges around the proceeds of crime and money laundering are discussed, with specific reference to the Prevention of Organised Crime Act 121 of 1998, which inter alia criminalised money laundering, and the FICA. Special focus is placed on section 29 of FICA and terminology such as “transaction” and “suspicion” is evaluated as well as section 37 of the FICA, which acknowledges the legal professional privilege. The research explains the principles around the legal professional privilege and the requirements for the privilege to sustain and also indicates that there are clear limitations to the application of the legal professional privilege, as mere confidential information is not privileged and the right to confidentiality can be limited by legislation. The research also evaluates contradictory views around the section 29 FICA reporting obligation by attorneys and addresses possible reasons for low reporting. As attorneys have a definite reporting obligation in terms of section 29 of FICA, ramifications of non-reporting may include an attorney being the subject of a criminal investigation for possible association with predicate offences, offences under POCA as well as FICA non-reporting offences. Relevant role players will therefore need to partner towards assisting the profession in understanding and discharging this reporting obligation. Recommendations addressing the role of the provincial law societies as well as the Financial Intelligence Centre in assisting towards maturing the regulatory regime are also discussed. The research concludes with an ethical and positivistic approach towards discharging the reporting obligation and suggestions regarding the way forward in order to protect the reputation of an elite profession. / Dissertation (LLM)--University of Pretoria, 2011. / Public Law / unrestricted

Magister Legum - LLM

With the implementation of more and more stringent measures to prevent money laundering, criminals are resorting to the expertise of lawyers for assistance in the formulation of increasingly complex money laundering schemes. This expertise is provided both wittingly and unwittingly. The purpose of this research was to consider whether the South African anti-money laundering legislation places suspicious transaction reporting obligations, which are in line with and meet international directives, conventions and best practice frameworks, on attorneys. The study entails a consideration of the suspicious transaction reporting obligations of lawyers introduced by the Financial Action Task Force, the European Union, the United Kingdom and South Africa and provides an understanding of the concept of money laundering, the money laundering process and the areas in which lawyers are vulnerable to money laundering. The research found that the suspicious transaction reporting responsibilities of attorneys in terms of South African anti-money laundering legislation are not in line with international frameworks and best practice. / Dissertation (MPhil)--University of Pretoria, 2014. / tm2015 / Auditing / MPhil / Unrestricted

Criminals make use of accountants to assist them, knowingly or unknowingly, with complex money laundering schemes. The nature of the accounting profession places accountants in an ideal position to identify possibly money laundering activities. The purpose of this research is to consider whether the reporting obligations of South African accountants in terms of section 29 of the Financial Intelligence Centre Act, No 38 of 2001, as amended, corresponds sufficiently with the services they provide so as to constitute an effective anti-money laundering measure. In order to evaluate the relevance of section 29, the reporting requirements of accountants practising in South Africa are compared with those of the European Union and the United Kingdom, as well as the requirements of the Financial Action Task Force. The research study will also analyse the money laundering process and the nature of the accounting profession and consider some of the methods used to perpetrate money laundering applicable to accountants. The research found that accountants in South Africa have a duty to report suspicious transactions only when they are party to such transactions or when they are going either to receive the proceeds of crime or be used for money laundering purposes. Accordingly, in view of the fact that accountants are more likely to be in a position to observe money laundering than to be party to such a transaction, the requirements of section 29 of the Financial Intelligence Centre Act, No 38 of 2001, as amended, are not effective when applied to accountants. Copyright / Dissertation (MPhil)--University of Pretoria, 2012. / Accounting / unrestricted

Magister Commercii - MCom (Business and Finance) / The dawn of democracy in South Africa (SA) in 1994 i.e. post-apartheid era came with inherent societal gender deficiencies and in all Sectors of the SA economy women experienced challenges. Specifically in the Banking Sector women were under represented in leadership and executive positions. The legal framework changed to correct the inequalities of the past resulting in various charters encouraging the private and public sector to transform.

Doctor Legum - LLD / This thesis investigates the legislative measures employed in South Africa to combat the implication of lawyers in money laundering schemes. Criminals make use of sophisticated technological means to transfer money and launderers routinely approach lawyers to assist them in their illegal endeavours. The legal profession is almost tailor-made for abuse by launderers, because lawyers work with huge amounts of money, clients are entitled to legal professional privilege and the right to legal representation is guaranteed constitutionally. The South African anti-money laundering regime, for the most part, is contained in two statutes, the Financial Intelligence Centre Act (FICA) and the Prevention of Organised Crime Act (POCA). Whilst FICA and POCA require the legal profession to be vigilant and accountable in the fight against money laundering, unfortunately they also infringe on hard-won rights, such as legal professional privilege, the right to legal representation and attorney-client confidentiality. The study considers South Africa’s efforts to fulfil its international anti-money laundering obligations whilst upholding the criminal procedural rights guaranteed in the Constitution. It is suggested that certain sections of FICA and POCA fail to find the required balance between protecting citizens from the harms of money laundering and protecting the fundamental rights of attorneys and their clients. Lawyers are in a unique position of trust and in some instances have access to information that may incriminate their clients. Unfortunately, in its quest to combat money laundering, Parliament did not consider seriously enough the position of lawyers and took the easy option of criminalising fees paid with tainted funds, as well as the non-submission of suspicious transaction reports (STRs) and cash transaction reports (CTRs). As a result, the South African legal profession is saddled with unacceptable constraints.

Magister Legum - LLM / From failing to arrest and surrender Sudanese President Omar Al-Bashir1 in accordance with its obligations under the Rome Statute of the International Criminal Court2 (Rome Statute), to its President acting inconsistently with its Supreme law3, it is evident that the rule of law is under threat in South Africa. Furthermore, South Africa has witnessed the cultivation of a culture of impunity for corruption in high office. South Africa has also experienced an increase in heinous crimes committed against women and children. The South African Rand recently plummeted given that its Minister of Finance Pravin Gordhan, recently faced charges of fraud4, as well as the ripple effect caused by the Fees Must Fall Movement.5 Against the backdrop of the above-mentioned issues that plague South Africa and hinder its development, the fight against money laundering hardly seems of pivotal importance in achieving the desired stability and development of the country. There is a public perception that money laundering is a crime of little consequence.8 This perception derives from the fact that money laundering does not have a direct impact on its victims and in some instances benefits the economy as it increases the profits for the financial sector and results in a greater availability of credit.9 Laundered money arguably is not harmful but rather beneficial to developing economies because money remains money, whether it is proceeds of crime or honestly earned.10 Although an increase in money is appealing to developing countries, the benefits that accompany laundered money are short-lived as the crime affects society adversely in the long run.11 However, where a country fails to prevent and prosecute money laundering offences, the prevalence of money laundering will impede the development of a state as it not only increases the profitability of crime and encourages the prevalence of corruption, but it also causes damage to critical financial sector institutions.12 Money laundering influences the commission of crimes that generate large amounts of profit, namely, organised crime, which is often described as the twin brother of money laundering.13 This is because criminals do not commit crimes to make money only but to enjoy this money as well.14 However, criminals need to launder their money in order to enjoy the proceeds of their criminal activities without drawing attention to these activities.15 Countries that combat money laundering effectively make it more difficult for criminals to launder the proceeds of their crimes. It becomes more risky for them to indulge in their ill-gotten gains, thus dissuading them from engaging in economic criminality.16 Money laundering is a process where the proceeds of crime are concealed and disguised in order to make them appear lawful.17 Criminals are thus able to enjoy the financial benefits of the crimes they commit.18 The pervasiveness of money laundering in a country does not only affect the confidence the public have in the country’s financial institutions but also undermines the confidence foreign investors and financial institutions have in a developing state’s financial institutions.19 A country can, therefore, run the risk of not benefitting from foreign direct investment.20 The financial institutions rely heavily on what the public think about their integrity.21

This study focuses on examining the security implications of money laundering and countermeasures, with reference to South Africa. The purpose of this study was to establish the following: <ul> <li> What is the extent, and what are the security implications of money laundering in South Africa;</li> <li> whether the current money laundering countermeasures in South Africa were effectively implemented from 1994 up to the end of 2006;</li> <li> if South Africa could implement better money laundering controls when compared to the G7/8 countries; and</li> <li> what the factors were that influenced money laundering in South Africa, compared to the G7/8 countries</li> </ul> This study also examined the validity of the following assumptions: <ul> <li>That there are still shortcomings in the practical application of money laundering countermeasures in South Africa, despite these countermeasures being based on the legislative measures adopted by the G7/8 countries; and</li> <li> money laundering promotes crime and corruption in South Africa.</li> </ul> An analysis of the South African anti-money laundering legislation indicated that South Africa had legislatively adopted all of the Financial Action Task Force money laundering recommendations. It was found that despite the strong legislative framework to combat money laundering in South Africa, these efforts were undermined by a lack of capacity; poor coordination that led to a large volume of reports being filed without a corresponding track record of successful prosecutions; and the failure to adopt advances in information technology. This led to a lack of effectively and efficiently translating the anti-money laundering legislation into practice in South Africa. / Dissertation (M(Security Studies))--University of Pretoria, 2008. / Political Sciences / unrestricted

This dissertation examines a bank’s right to unilaterally terminate its contractual relationship with a customer on the basis of reputational risk. The law of contract allows a bank to terminate the bank-customer agreement when the customer is in serious breach of the contract. Over the years, however, a pattern has started to develop by which a bank can unilaterally terminate the bank-customer relationship of high-risk customers based on reputational risk. Banks are reluctant to facilitate the transactions of individuals surrounded by negative publicity, due to fears of how the bank’s investors, customers or counterparts might perceive the bank. Compliance with anti-money laundering (AML) and counter financing of terrorism (CFT) requirements, as set out by both domestic and foreign legislation, results in higher costs for the bank. As such, the profitability of a particular bank-customer relationship may ultimately decline to such an extent that the bank rather decides to make an appropriate business decision by terminating the relationship. Correspondent banking relationships are agreements in terms of which one bank will provide services for another in jurisdictions where the first bank lacks a physical presence. As such, whenever there is a perception that a local bank does not comply with the relevant AML/CFT laws as set out by its domestic legislation, the correspondent bank might decide to terminate its relationship with the local bank, leaving the latter financially excluded from the correspondent banking market. Such a situation would hinder the growth of the South African economy and may also cause a systemic event in the financial industry. Adequate customer due diligence (CDD) measures assist a bank in formulating a clear understanding of the business of its customers. The information obtained through CDD may also assist the bank in determining the reputation of a particular customer. This information can also assist law enforcement in combatting financial crimes. In this regard, it is recommended that a bank should be able to trace the information that was shared with Financial Intelligence Units (FIUs) and law enforcement agencies, so that the bank may reasonably determine the level of reputational risk involved in the relationship. / Mini Dissertation (LLM)--University of Pretoria, 2020. / Mercantile Law / LLM / Unrestricted

Money Service Businesses provide people and institutions with a way to send money (remit) from one place to another. This service is most often associated with migrants, who typically wish to send money or value home. Remittances can be sent both on a domestic and on a cross-border basis. The methods used to remit money or value can be used for both legitimate and illegal purposes. The question posed by this research is whether the Money Service Businesses that operate in South Africa and provide crossborder remittance services are adequately regulated, to ensure that it is not used for the purposes of money laundering and/or terror financing. Copyright / Dissertation (MPhil)--University of Pretoria, 2010. / Accounting / unrestricted