Yunus Carrim, chairperson of Parliament's Standing Committee on Finance, is willing to go all the way to the Constitutional Court over the Financial Intelligence Centre (FIC) Amendment Bill.
The committee met on Wednesday to decide on a way forward after President Jacob Zuma sent the bill back to the legislature, citing reservations about clauses in the bill authorising warrantless searches.
Carrim said in a statement after the meeting the issue Zuma raises is a constitutional matter and if there is no agreement, the issue should be referred to the Constitutional Court.
The bill is crucial because it brings South African legislation into line with international law and treaties, to which the country and its financial institutions are party to. It seeks to compel financial institutions to keep tabs on suspicious financial flows in and out of "politically exposed" individuals' bank accounts and to work with law enforcement agencies.
The bill is crucial because it brings South African legislation into line with international law and treaties to which the country and its financial institutions are party to.
MP's received legal advice from parliamentary legal advisors, who explained that the Joint Rules of Parliament prescribes that the committee must reconsider the clauses the president objects to.
Carrim, from the African National Congress (ANC) said the committee discussed the bill and all of its clauses extensively. "This is not a policy matter. It's a constitutional matter, and it'll have to be primarily decided by lawyers. If the lawyers Parliament consult can't agree, we can maybe delete the provision. But it's also possible that the Constitutional Court might have to decide on this."
This is not a policy matter. It's a constitutional matter, and it'll have to be primarily decided by lawyers.Yunus Carrim
Both National Treasury and the Financial Intelligence Centre advised MP's that the clause in question does not allow warrantless searches "in general" and said grounds for exception – as articulated in the bill – have been recognised by the Constitutional Court as valid. According to them an inspection without a warrant may only be conducted in relation to the business affairs of an accountable institution and only to determine compliance with the FIC Act.
The bill in its current form stipulates that duly appointed inspectors may carry out a warrantless inspection if the person in physical control of the premises in question has been informed of the inspection and has given permission.
Both National Treasury and the Financial Intelligence Centre advised MP's that the clause in question does not allow warrantless searches in general and said grounds for exception have been recognised by the Constitutional Court
The inspectors are further allowed to carry out the inspection if they believe a warrant will be issued and that a delay in the issuing of the warrant will defeat the ends of justice.
Such an inspection must take place "at a reasonable time, place . . . and with strict regard to decency and good order".