Guidelines for Duty to Report Criminal Activities

SU LEGAL SERVICES

GUIDELINES FOR DUTY TO REPORT CRIMINAL ACTIVITIES

Published by:

Legal Services

Administration Building B, 4th Floor Victoria Street, Stellenbosch, 7602

Private Bag X1 • Matieland 7602 •South Africa

Tel: +27 21 808 2876

Fax: +27 21 808 4550

14 April 2014

This guideline provides a brief summary of the obligation to report, together with a schedule of relevant extracts from the legislation. It is not an exhaustive résumé of parties’ obligations in terms of the relevant legislation. Should you find yourself in a position covered by any of the legislation, the particular matter can be considered relevant to the specific facts.

Drugs and Drug Trafficking Act

Section 10 states that any person in charge of, manager of, or has supervision of a ‘place of entertainment’, who has reason to suspect that there is contravention of this Act, must report to the police as soon as possible.

Financial Intelligence Centre Act (“FICA”)

Section 32 states that reporting must be made by an accountable institution regarding: ‘cash transactions above (the) prescribed limit’ (section 28); ‘property associated with terrorist and related activities’ (section 28A); ‘suspicious and unusual transactions’ (section 29) or; ‘electronic transfers of money to or from the Republic’ (section 31) and ‘conveyance of cash to or from the Republic’ (section 30).

Inquests Act

Section 2 states that if any person has reason to believe that someone has died other than by way of natural causes they must report it to the police, unless they have reason to believe that the report has been made or will be made by someone else.

Prevention and Combating of Corrupt Activities Act

Section 34 states that any person who holds a position of authority, who knows or ought reasonably to have known or suspect that another person has committed an offence in terms of the Act, involving an amount of R100000 or more, must report to the police.

Prevention of Organised Crime Act (“POCA”)

Section 71 states that the National Director may request anyone employed by or associated with a statutory body to furnish him with information that is necessary for an investigation in terms of the Act.

Protection of Constitutional Democracy against Terrorist and Related Activities Act (“POCDATARA”)

Section 12 states that there is a duty to report the presence or place of a person who is suspected of intending to commit or who is committing an offence in terms of the Act. Failure to report will be considered an offence.

Second-Hand Goods Act

This is included as a possible relevant Act for the duty to report. Section 22 states that “dealers” who have reason to believe that second-hand goods received by them are stolen or have been tampered with to conceal their identity, must report to the police. The University would have to fall under the definition of “dealer” for this Act to be relevant, which we are not sure it does.

Fire Safety By-Law

Section 78 states that the owner or occupier of a premises on which any fire, accident or dumping involving a flammable substance has caused damage to a person, animal, property or the environment on that premises, must immediately report the incident to the chief fire officer.

This guideline serves only as a guideline. In a particular instance you may require legal advice and support. If so, you must contact Legal Services at the contact details provided above.

US REGSDIENSTE
RIGLYNE VIR VERPLIGTING AANMELDING VAN KRIMINELE
Gepubliseer deur:
Regsdienste
Administrasiegebou B, 4de vloer Victoriastraat, Stellenbosch, 7602
Privaatsak X1 Matieland 7602 • • Suid-Afrika
Tel: +27 21 808 2876
Faks: +27 21 808 4550
14 April 2014

Hierdie riglyn bied 'n kort opsomming van die verpligting om te rapporteer, saam met 'n lys van relevante uittreksels uit die wetgewing. Dit is nie 'n volledige samevatting van partye se verpligtinge in terme van die toepaslike wetgewing nie. Indien jy jouself in 'n posisie vind wat deur enige van die wetgewing geraak word, kan die betrokke geval oorweeg word aan die hand van die spesifieke feite en toepaslike wetgewing.

Wet op Dwelmmiddels en Dwelmsmokkelary
Artikel 10 bepaal dat enige persoon in beheer van, bestuurder van, of toesig van 'n 'plek van vermaak', wat rede het om te vermoed dat daar 'n oortreding van hierdie Wet, dit by die polisie so gou as moontlik moet aanmeld.
Wet op die Finansiële Intelligensiesentrum
Artikel 32 bepaal dat verslag gedoen moet word deur 'n verantwoordingspligtige instelling ten opsigte van: 'kontant transaksies bo (die) voorgeskrewe perk' (artikel 28); se eiendom wat verband hou met die terroriste-en verwante aktiwiteite "(artikel 28A); 'n verdagte en ongewone transaksies '(artikel 29); of 'n elektroniese oordrag van geld na of van die Republiek (artikel 31) en 'vervoer van kontant na of van die Republiek (artikel 30).

Wet op Geregtelike Doodsondersoeke
Artikel 2 bepaal dat indien enige persoon rede het om te glo dat iemand gesterf het anders as deur middel van natuurlike oorsake, moet hulle dit by die polisie aanmeld, tensy hulle het rede om te glo dat die verslag gemaak is of gemaak sal word deur iemand anders.
Wet op die Voorkoming en Bestryding van Korrupte Bedrywighede
Artikel 34 bepaal dat enige persoon wat 'n posisie van gesag, wie weet hou of redelikerwys behoort te geweet het of vermoed dat 'n ander persoon 'n misdryf in terme van die Wet, wat 'n bedrag van R100 000 of meer gepleeg het, moet by die polisie aanmeld .
Wet op die Voorkoming van Georganiseerde Misdaad
Artikel 71 bepaal dat die Nasionale Direkteur kan enige iemand in diens van of wat verband hou met 'n statutêre liggaam hom van inligting te voorsien wat nodig is vir 'n ondersoek in terme van die Wet op versoek.
Wet op Beskerming van Konstitusionele Demokrasie teen Terroriste- En Verwante Aktiwiteite
Artikel 12 bepaal dat daar 'n plig om die teenwoordigheid of die plek van 'n persoon wat van voorneme is om te pleeg of wat die pleeg van 'n misdryf in terme van die Wet is vermoedelik aan te meld. Versuim om te rapporteer, word beskou as 'n misdryf.

Wet op Tweedehandse Goed
Dit word ingesluit as 'n moontlike betrokke Wet vir die diens aan te meld. Artikel 22 bepaal dat "handelaars" wat rede het om te glo dat tweedehandse goedere deur hulle ontvang is gesteel of gepeuter met hul identiteit te verberg, moet by die polisie aanmeld. Die Universiteit sou hê om te val onder die definisie van "handelaar" vir hierdie Wet om relevant te wees, wat ons nie seker is dit nie.
[Brandveiligheid-Law]
Artikel 78 bepaal dat die eienaar of bewoner van 'n perseel waarop 'n brand, ongeluk of storting van 'n vlambare stof enige skade aan 'n persoon, dier, eiendom of die omgewing op die perseel, moet onmiddellik die voorval by die brandweerhoof .
Hierdie riglyn dien slegs as 'n riglyn. In 'n spesifieke geval wat jy mag benodig regsadvies en ondersteuning. As dit so is, moet jy kontak Regsdienste by die kontakbesonderhede hierbo.

DRUGS AND DRUG TRAFFICKING

NO. 140 of 1992

“place of entertainment” includes any premises, vehicle, vessel or aircraft, or any part thereof, used for or in connection with any exhibition, show, performance, dance, amusement, game, competition or sport;

10.Obligation to report certain information to police—(1)If the owner, occupier or manager of any place of entertainment, or any person in control of any place of entertainment or who has the supervision thereof, has reason to suspect that any person in or on such place of entertainment uses, has in his possession or deals in any drug in contravention of the provisions of this Act, he shall—
(a)as soon as possible report his suspicion to any police official on duty at that place of entertainment or at the nearest police station, as the case may be; and
(b)at the request of the said police official, furnish that police official with such particulars as he may have available regarding the person in respect of whom the suspicion exists.
(2)......
[Sub-s. (2) deleted by s.79 (b) of Act No. 121 of 1998.]
Wording of Sections
(3)If—
(a)any stock-broker as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985); or
(b)any financial instrument trader as defined in section 1 of the Financial Markets Control Act, 1989 (Act No. 55 of 1989),
has reason to suspect that any property acquired by him from any person in the ordinary course of his business is the proceeds of a defined crime, he shall—
(i)
as soon as possible report his suspicion to any designated officer; and
(ii)
at the request of that designated officer, furnish the said officer with such particulars as he may have available regarding the person from whom that property has been acquired.
(4)No obligation as to secrecy and no other restriction on the disclosure of any information as to the affairs or business of a customer or client, whether imposed by any law, the common law or any agreement, shall affect any obligation incurred by virtue of the provisions of subsection (2) or (3).

FINANCIAL INTELLIGENCE CENTRE ACT
NO. 38 OF 2001

Definitions

“accountable institution” means a person referred to in Schedule 1;

“authorised officer” means any official of—

(a)the South African Police Service authorised by the National Commissioner to act under this Act;

(b)the national prosecuting authority authorised by the National Director of Public Prosecutions to act under this Act;

(c)an intelligence service authorised by the Director-General of that service to act under this Act; or

(d)the South African Revenue Service authorised by the Commissioner for that Service to act under this Act;

“bearer negotiable instrument”.for the purposes of this Act, means any instrument that may on demand by the bearer thereof be converted to the currency of the Republic or that of another country, and includes, amongst others, cheques, promissory notes or money orders;

“business relationship” means an arrangement between a client and an accountable institution for the purpose of concluding transactions on a regular basis;

“cash” means—

(a)coin and paper money of the Republic or of another country that is designated as legal tender and that circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue;

(b)travellers’ cheques;

“Centre” means the Financial Intelligence Centre established by section 2;

“Council” means the Counter-Money Laundering Advisory Council established by section 17;

“Director” means the Director of the Centre appointed in terms of section 6;

“entity” has a corresponding meaning with the definition in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004;

“inspector”.means a person appointed in terms of section 45A;

“intelligence service” means the National Intelligence Agency or the South African Secret Service established by section 3 of the Intelligence Services Act, 1994(Act No. 38 of 1994);

“investigating authority” means an authority that in terms of national legislation may investigate unlawful activities;

“Minister” means the Minister of Finance;

“money laundering” or “money laundering activity” means an activity which has or is likely to have the effect of concealing or disguising the nature, source, location, disposition or movement of the proceeds of unlawful activities or any interest which anyone has in such proceeds, and includes any activity which constitutes an offence in terms of section 64 of this Act or section 4, 5 or 6 of the Prevention Act;1

“National Commissioner” means the National Commissioner of the South African Police Service referred to in section 207 of the Constitution of the Republic of South Africa, 1996(Act No. 108 of 1996);

“National Director of Public Prosecutions” means the National Director of Public Prosecutions referred to in section 179 of the Constitution of the Republic of South Africa, 1996(Act No. 108 of 1996);

“non-compliance”.means any act or omission, and “fails to comply”, “failure to comply” and “not complying” have the same meaning;

“prescribed” means prescribed by the Minister by regulation in terms of section 77;

“Prevention Act” means the Prevention of Organised Crime Act, 1998(Act No. 121 of 1998);

“proceeds of unlawful activities” has the meaning attributed to that term in section 1 of the Prevention Act;2

“property” has the meaning attributed to that term in section 1 of the Prevention Act;3

“reporting institution” means a person referred to in Schedule 3;

“single transaction” means a transaction other than a transaction concluded in the course of a business relationship;

“South African Revenue Service” means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);

“supervisory body” means a functionary or institution referred to in Schedule 2;

“terrorist and related activities”has the meaning assigned to it in section 1 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);

“offence relating to the financing of terrorist and related activities” means an offence under section 4 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004;

“this Act” includes any regulation made or exemption given under this Act;

“transaction” means a transaction concluded between a client and an accountable institution in accordance with the type of business carried on by that institution;

“unlawful activity” has the meaning attributed to that term in section 1 of the Prevention Act.4

(2)For the purposes of this Act a person has knowledge of a fact if—

(a)the person has actual knowledge of that fact; or

(b)the court is satisfied that—

(i)

the person believes that there is a reasonable possibility of the existence of that fact; and

(ii)

the person fails to obtain information to confirm or refute the existence of that fact.

(3)For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached, are those which would have been reached by a reasonably diligent and vigilant person having both—

(a)the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and

(b)the general knowledge, skill, training and experience that he or she in fact has.

22.Record to be kept of business relationships and transactions.—(1)Whenever an accountable institution establishes a business relationship or concludes a transaction with a client, whether the transaction is a single transaction or concluded in the course of a business relationship which that accountable institution has with the client, the accountable institution must keep record of—

(a)the identity of the client;

(b)if the client is acting on behalf of another person—

(i)

the identity of the person on whose behalf the client is acting; and

(ii)

the client’s authority to act on behalf of that other person;

(c)if another person is acting on behalf of the client—

(i)

the identity of that other person; and

(ii)

that other person’s authority to act on behalf of the client;

(d)the manner in which the identity of the persons referred to in paragraphs (a), (b) and (c) was established;

(e)the nature of that business relationship or transaction;

(f)in the case of a transaction—

(i)

the amount involved; and

(ii)

the parties to that transaction;

(g)all accounts that are involved in—

(i)

transactions concluded by that accountable institution in the course of that business relationship; and

(ii)

that single transaction;

(h)the name of the person who obtained the information referred to in paragraphs (a), (b) and (c) on behalf of the accountable institution; and

[General Note: Exemptions have been published under Government Notice No. R.1596 in Government Gazette 24176 of 20 December, 2002 and under Government Notice No. R.1353 in Government Gazette 27011 of 19 November, 2004.]

(i)any document or copy of a document obtained by the accountable institution in order to verify a person’s identity in terms of section 21(1) or (2).

(2)Records kept in terms of subsection (1) may be kept in electronic form.

23.Period for which records must be kept.—An accountable institution must keep the records referred to in section 22 which relate to—

(a)the establishment of a business relationship, for at least five years from the date on which the business relationship is terminated;

(b)a transaction which is concluded, for at least five years from the date on which that transaction is concluded.

27.Accountable institutions to advise Centre of clients.—If an authorised representative of the Centre requests an accountable institution to advise whether—

(a)a specified person is or has been a client of the accountable institution;

(b)a specified person is acting or has acted on behalf of any client of the accountable institution; or

(c)a client of the accountable institution is acting or has acted for a specified person,

the accountable institution must inform the Centre accordingly.

28.Cash transactions above prescribed limit.—An accountable institution and a reporting institution must, within the prescribed period, report to the Centre the prescribed particulars concerning a transaction concluded with a client if in terms of the transaction an amount of cash in excess of the prescribed amount—

(a)is paid by the accountable institution or reporting institution to the client, or to a person acting on behalf of the client, or to a person on whose behalf the client is acting; or

(b)is received by the accountable institution or reporting institution from the client, or from a person acting on behalf of the client, or from a person on whose behalf the client is acting.

28A.Property associated with terrorist and related activities.—(1)An accountable institution which has in its possession or under its control property owned or controlled by or on behalf of, or at the direction of—

(a)any entity which has committed, or attempted to commit, or facilitated the commission of a specified offence as defined in the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004; or

(b)a specific entity identified in a notice issued by the President, under section 25 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004,

must within the prescribed period report that fact and the prescribed particulars to the Centre.

(2)The Director may direct an accountable institution which has made a report under subsection (1) to report—

(a)at such intervals as may be determined in the direction, that it is still in possession or control of the property in respect of which the report under subsection (1) had been made; and

(b)any change in the circumstances concerning the accountable institution’s possession or control of that property.

29.Suspicious and unusual transactions.—(1)A person who carries on a business or is in charge of or manages a business or who is employed by a business and who knows or ought reasonably to have known or suspected that—

(a)the business has received or is about to receive the proceeds of unlawful activities or property which is connected to an offence relating to the financing of terrorist and related activities;