Is the reporting obligation of attorneys in terms of section 29 of the Financial Intelligence Centre Act 38 of 2001 a myth or a reality?

Abstract

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.