| (a) |
In this section "compliance" means compliance with a provision of this Act or any order, determination or directive made in terms of this Act and which, if not complied with, constitutes non-compliance. |
| (b) |
An inspector appointed in terms of section 45A may enter the premises, excluding a private residence, of an accountable institution or reporting institution which is registered in terms of section 43B or otherwise licensed or authorised by a supervisory body and inspect the affairs of the accountable institution or reporting institution, as the case may be, for the purposes of determining compliance. |
[Section 45B(1) substituted by section 32(a) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (1A) |
An inspector appointed in terms of section 45A may, for the purposes of determining compliance and on the authority of a warrant issued under subsection (1B), enter and inspect— |
| (a) |
a private residence; or |
| (b) |
any premises other than premises contemplated in subsection (1)(b) or paragraph (a) (in this section referred to as "unlicensed business premises"), |
if the Centre or a supervisory body reasonably believes that the residence or premises are used for a business to which the provisions of this Act apply.
[Section 45B(1A) inserted by section 32(b) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (1B) |
A magistrate or judge may issue a warrant contemplated in subsection (1A)— |
| (a) |
on written application by the Centre or a supervisory body setting out under oath or affirmation why it is necessary for an inspector to enter and inspect the private residence or unlicensed business premises; and |
| (b) |
if it appears to the magistrate or judge from the information under oath or affirmation that— |
| (i) |
there are reasonable grounds for suspecting that an act of non-compliance has occurred; |
| (ii) |
entry and inspection of the private residence or unlicensed business premises are likely to yield information pertaining to the non-compliance; and |
| (iii) |
entry and inspection of that residence or those premises are reasonably necessary for the purposes of determining compliance. |
[Section 45B(1B) inserted by section 32(b) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (1C) |
An inspector otherwise required to obtain a warrant for entry and inspection of a private residence or unlicensed business premises in terms of subsection (1A), may enter and inspect that residence or those premises without a warrant— |
| (i) |
in the case of a private residence— |
| (aa) |
the person apparently in control of the business reasonably believed to be conducted at the private residence; and |
| (bb) |
the occupant of the part of the private residence to be entered and inspected; or |
| (ii) |
in the case of unlicensed business premises, the person apparently in control of the business reasonably believed to be conducted at the premises, |
after informing him or her that he or she is under no obligation to admit the inspector in the absence of a warrant; or
| (b) |
with the prior authority of the Director or the head of a supervisory body, or a senior staff member of the Centre or supervisory body delegated to perform the function, if the Director, head or senior staff member on reasonable grounds believes that— |
| (i) |
a warrant will be issued under subsection (1B) if applied for; |
| (ii) |
the delay in obtaining the warrant is likely to defeat the purpose for which entry and inspection of the private residence or unlicensed business premises is sought; and |
| (iii) |
it is necessary to enter and inspect that residence or those premises to perform any or all of the actions contemplated in section 45B(2)(a) to (f). |
[Section 45B(1C) inserted by section 32(b) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (1D) |
Where an inspector enters and inspects premises in terms of subsection (1)(b), or a private residence or unlicensed business premises in terms of subsection (1C), he or she must do so— |
| (a) |
at a reasonable time within ordinary business hours or, in the case of an entry and inspection in terms of subsection (1C)(b), if the inspector on reasonable grounds believes that the purpose for which the entry and inspection is sought, is likely to be defeated by a delay, as closely to ordinary business hours as the circumstances reasonably permit; |
| (b) |
on reasonable notice, where appropriate; |
| (c) |
with strict regard to an affected person’s right to— |
| (ii) |
freedom and security; |
| (iv) |
other constitutional rights; and |
| (d) |
with strict regard to decency and good order as the circumstances require, in particular by— |
| (i) |
entering and inspecting only such areas or objects as are reasonably required for purposes of section 45B(2); |
| (ii) |
conducting the inspection discreetly and with due decorum; |
| (iii) |
causing as little disturbance as possible; and |
| (iv) |
concluding the inspection as soon as possible. |
[Section 45B(1D) inserted by section 32(b) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (1E) |
Subsection (1D)(c) and (d) apply with the necessary changes where an inspector enters and inspects premises on the authority of a warrant issued under subsection (1B). |
[Section 45B(1E) inserted by section 32(b) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (2) |
An inspector, in conducting an inspection, may— |
| (a) |
in writing direct a person to appear for questioning before the inspector at a time and place determined by the inspector; |
| (b) |
order any person who has or had any document in his, her or its possession or under his, her or its control relating to the affairs of the accountable institution, reporting institution or person— |
| (i) |
to produce that document; or |
| (ii) |
to furnish the inspector at the place and in the manner determined by the inspector with information in respect of that document; |
| (c) |
open any strongroom, safe or other container, or order any person to open any strongroom, safe or other container, in which the inspector suspects any document relevant to the inspection is kept; |
| (d) |
use any computer system or equipment on the premises or require reasonable assistance from any person on the premises to use that computer system to— |
| (i) |
access any data contained in or available to that computer system; and |
| (ii) |
reproduce any document from that data; |
| (e) |
examine or make extracts from or copy any document in the possession of an accountable institution, reporting institution or person or, against the issue of a receipt, remove that document temporarily for that purpose; and |
| (f) |
against the issue of a receipt, seize any document obtained in terms of paragraphs (c) to (e), which in the opinion of the inspector may constitute evidence of non-compliance with a provision of this Act or any order, determination or directive made in terms of this Act. |
| (2A) |
When acting in terms of subsection (2)(b) or (d), an inspector of— |
| (b) |
a supervisory body referred to in item 1 or 2 of Schedule 2; or |
| (c) |
any other supervisory body meeting the prescribed criteria, |
may order from an accountable institution or reporting institution under inspection, the production of a copy of a report, or the furnishing of a fact or information related to the report, contemplated in section 29.
[Section 45B(2A) inserted by section 32(c) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (2B) |
If the inspector of a supervisory body, referred to in subsection (2A)(b) or (c), obtained a report, or a fact or information related to the report, under subsection (2A), that supervisory body must request information from the Centre under section 40(1C) relating to the report contemplated in section 29 which may be relevant to such inspection. |
[Section 45B(2B) inserted by section 32(c) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (2C) |
For purposes of subsection (2B), the Centre must provide the information to the inspector of the supervisory body in accordance with section 40. |
[Section 45B(2C) inserted by section 32(c) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (3) |
An accountable institution, reporting institution or other person to whom this Act applies, must without delay provide reasonable assistance to an inspector acting in terms of subsection (2). |
| (4) |
The Centre or a supervisory body may recover all expenses necessarily incurred in conducting an inspection from an accountable institution or reporting institution inspected. |
[Section 45B(4) substituted by section 32(d) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (a) |
Subject to section 36 and paragraph (b), an inspector may not disclose to any person not in the service of the Centre or supervisory body any information obtained in the performance of functions under this Act. |
| (b) |
An inspector may disclose information— |
| (i) |
for the purpose of enforcing compliance with this Act or any order, determination or directive made in terms of this Act; |
| (ii) |
for the purpose of legal proceedings; |
| (iii) |
when required to do so by a court; or |
| (iv) |
except information contemplated in subsection (2A) and (2C), if the Director or supervisory body is satisfied that it is in the public interest. |
[Section 45B(5)(b)(iv) substituted by section 32(e) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)]
| (a) |
An inspector appointed by the Director may, in respect of any accountable institution regulated or supervised by a supervisory body in terms of this Act or any other law, conduct an inspection only if a supervisory body failed to conduct an inspection despite any recommendation of the Centre made in terms of section 44(b) or failed to conduct an inspection within the period recommended by the Centre. |
| (b) |
[Section 45B(6)(b) deleted by section 32(f) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)] |
| (c) |
An inspector appointed by the Director may on the request of a supervisory body accompany and assist an inspector appointed by the head of a supervisory body in conducting an inspection in terms of this section. |
| (7) |
[Section 45B(7) deleted by section 32(g) of the Financial Intelligence Centre Amendment Act, 2017 (Act No. 1 of 2017)] |
[Section 45C inserted by section 16(b) of the Financial Intelligence Centre Amendment Act, 2008 (Act No. 11 of 2008)]
Financial Services Board Act, 1990
