At That Point
  • home
  • services
  • about us
  • our work
  • our thoughts

South African Institute of Professional Accountants (SAIPA) questions Constitutionality of FICA Bill

8/2/2017

0 Comments

 
The Financial Intelligence Centre Amendment (FICA) bill has been in limbo since Parliament assented to it in May 2016. For months, it awaited approval from President Jacob Zuma. But in December last year, the President returned the bill to Parliament, citing concerns over the constitutionality of a single clause that would allow inspectors to carry out searches without a warrant. Since then, President Zuma has been harshly criticised for its delay.
 
SAIPA itself deliberated the constitutional integrity of the clause and has submitted a letter to Parliament’s Standing Committee on Finance outlining its reservations.
 
Ayanda Mabida, Company Secretary at the South African Institute of Professional Accountants (SAIPA) says SAIPA acknowledges that FICA is essential to South Africa meeting its obligations as a member of the Financial Action Task Force, an intergovernmental body that sets standards for combating money laundering, terrorist financing and other abuses of the international financial system.
 
Lack of specificity
“SAIPA has reservations on the warrantless searches,” says Mabida. “There are definite circumstances where offenders may leverage delays in obtaining a search warrant to tamper with or destroy crucial evidence. Rather, our concerns relate to the lack of specificity about the conditions under which warrantless searches can be executed.”
 
In its current form, the amended clause threatens to violate Section 14 of the Bill of Rights, which states that everyone has the right to privacy, and not to have their person, home or property searched, their possessions seized or the privacy of their communications infringed.
 
To paraphrase the FICA amendment, an inspector may enter premises without a warrant, either with consent from the person in charge (provided they’re informed of their right to refusal), or if the inspector on reasonable grounds believes that a) a warrant would be issued anyway, and b) the delay in obtaining one would defeat the end (refer to FICA 32(b)).
 
According to Mabida, the term “reasonable grounds” doesn’t adequately describe the extent of the limitation of the right as required by Section 36 of the Constitution. “It could be abused and therefore infringe on the constitutional rights of those under investigation or anyone else.”
 
Although a court may rectify such infringement after the fact, Mabida is adamant. “It remains that a person’s constitutional rights would already have been violated. On principle, no law should be passed that would permit this eventuality.”
 
How should it be done?
Mabida highlights the Anton Piller order as a model of a well-defined legislation. One can be obtained promptly and allows authorities to carry out a search without prior notice, provided that an extremely strong prima facie case exists; the damage to the applicant would be drastic; and the offenders clearly possess relevant documents or items and could certainly destroy these before a warrant can be obtained.
 
Mabida concludes that South Africa must satisfy its responsibility to harden its financial systems, but not at the expense of its founding principles. “In developing new legislation, we must ensure that even the most minor clause honours the Constitution as our nation’s highest legal standard, and affords its people the protection described under the Bill of Rights.”
ENDS

MEDIA CONTACT: Idéle Prinsloo, 082 573 9219, idele@thatpoint.co.za, www.atthatpoint.co.za  
 
For more information on SAIPA please visit:
Website: www.saipa.co.za
Twitter: @SAIPAcomms
LinkedIn: South African institute of Professional Accountants Company
Facebook: South African Institute of Professional Accountants
0 Comments
    Welcome to the SAIPA newsroom. For releases prior to August 2014 please click here.

    Archives

    December 2020
    November 2020
    October 2020
    September 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    April 2015
    February 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All
    2014/15 Tax Filing Season
    2016 Tax Administration Laws Amendment Bill
    21 February 2018
    4IR
    Accountability
    Accountancy
    Accountants
    Accounting
    Accounting Ethics
    Accounting Institutions
    Accounting Integrity
    Accounting Standards
    Advice For Professional Accountants
    Africa
    Anti-corruption Pledge
    B-BBEEE
    Blockchain
    Bongani Coka
    Brian Purcell
    Bridging The Gap
    Budget 2015
    Budget 2016/17
    Budget Speech 2018
    Business
    Business Budget
    Business Rescue
    Cadre Formation
    Carbon Tax
    Careers
    CEO
    Code Of Ethics
    Companies Act
    Constitution
    Continuing Professional Development
    CPA Ireland
    CPD
    Cryptocurrencies
    Cryptocurrency
    Cyber Crime
    Cyber Security
    Cyril Ramaphosa
    Darren Gorton
    David Van Rooyen
    Davis Commission
    Debt
    Debt Intervention Bill
    Deloitte
    Department Of Basic Education
    Department Of Home Affairs
    Die Hoërskool DF Malan
    Different Types Of Accountants
    Doctoral
    Economic Climate
    Economic Development
    Economic Growth
    Economic Instability
    Economy
    Education
    Empowerment
    Environment
    Estate Planning
    Ethics
    Ettiene Retief
    Exxcellence
    Faith Ngwenya
    Female Entrepreneurs
    FICA
    FICA Bill
    Finance Minister
    Financial Intelligence Centre Act
    Financial Statements
    Fiscus
    Foreign Trade
    Fraud
    Georgina Barrick
    Global Economy
    Government
    Government Institutions
    Grade 11
    Grade 12
    Grant Thornton
    Health Issues
    Honours Degree
    HSBC
    IFAC
    Initial Coin Offerings
    International Business Report
    International Federation Of Accountants
    International Standard Of Review Engagements
    IRC Of SA
    Job Creation
    Job Losses
    Juane Cronje
    KPMG
    Kwa-Zulu Natal
    Large Business Centre
    LBC
    Learners
    Legal
    Malusi Gigaba
    Mandela Day
    Mark Kingon
    Marnus Broodryk
    Masters Degree
    Mathematics
    Medium-Term Budget Policy Statement
    Membership
    Mid-term Budget
    Mini Budget
    Moetapele Programme
    Momorandum Of Understanding
    Money Launderers
    Monitoring Females
    MTBPS
    NAO
    National Accounting Olympiad
    National Budget 2017
    National Consumer Tribunal
    National Credit Amendment Bill
    National Credit Regulator
    National Development Plan
    National Health
    National Imperatives
    National Tax Thesis
    NOCLAR
    Non-compliance
    Non-Compliance With Laws And Regulations
    Norton Rose Fullbright
    Obesity
    PAFA
    Pan African Federation Of Accountants
    Parilament
    Parliament
    Parliament’s Trade And Industry Committee
    Passenger Identity
    Paying Taxes Report 2018
    PE Exam
    Personal Details
    Personal Income Tax
    Pravin Gordhan
    Prem Govender
    Professional Accountants
    Professional Accountant (SA)
    Professional Accounting
    Professional Evaluation Exam
    Project Achiever
    Project Achiever Extended
    Protection Of Information
    Public Schools
    PWC
    Ragiema Thokan Mahomed
    Ragiema Thokan-Mahomed
    Rashied Small
    Repositioning
    Retirement Funding Reform
    SAIPA
    SAIPA Budget Breakfast
    SARS
    School
    School Learners
    Service Delivery
    Shahid Daniels
    Shahied Daniels
    Shirley Olsen
    Sibusiso Thungo
    Skills
    Skills Development
    Skills Retention Plan
    Skills Shortage
    SMEs
    South Africa
    South African Institute Of Professional Accountants
    South African Institute Of Professional Accountants
    South African Institute Of Tax Professionals
    South African Schools Act
    Struggling Economy
    Students
    Sugar Tax
    Sugary Drinks
    Sustainibility
    Tax
    Tax & Accounting Thesis Competition
    Tax Administration Act
    Tax Administration Laws Amendment Bill
    Taxation
    Tax Clearance Certificates
    Tax Compliance
    Tax Filing Season
    Tax Indaba 2016
    Tax Law
    Tax Ombud
    Tax Payers
    Tax Practitioner
    Tax Season
    Tax Thesis
    Tax Thesis Competition
    Technology
    Tertiary Education
    The Financial Intelligence Centre Amendment (FIC
    Thesis/dissertations
    The South African Institute Of Professional Accountants
    The South African Revenue Service
    The Tax Administration Act
    Thomas Hoeppli
    Tom Mojane
    Transformation
    Treasury
    Trust
    Trusts
    UCT
    Unemployment
    University Of Cape Town
    Value Added Tax
    VAT
    Wealth Taxes
    Winslyn
    Women
    Women Empowerment
    Women's Month
    Workplace
    World Bank
    Xenophobia
    Youth
    Zobuzwe Ngobese

    RSS Feed

CONTACT US

office [at] atthatpoint [dot] co [dot] za
© COPYRIGHT 2020
ALL RIGHTS RESERVED.

  • home
  • services
  • about us
  • our work
  • our thoughts