In what appears to be a lucid moment of good governance, President Jacob Zuma has returned the controversial Financial Intelligence Centre Amendment Bill to Parliament due to concerns about the Bill’s constitutional validity, reports Business Day.
Section 11B of the Bill has various provisions empowering a ‘centre inspector’ to, among other things, enter onto private property “at any reasonable time” to search for documents which might relate to money laundering or the financing of terrorism. The centre inspector may also conduct a physical search of people on said private property, with the qualification that the inspector is the same sex as the person being searched. All this can apparently be done without requesting a warrant from a judge or magistrate.
According to Business Day this referral of the Bill back to Parliament has potential consequences for South Africa’s adherence to its international obligations, in particular, those to the Financial Action Task Force on Money Laundering. Writes Business Day:
“The delay means SA will not meet the task force’s February deadline to introduce tighter monitoring of financial transactions. SA now risks being put on a watch list.”
However, in terms of section 35(3) of the Constitution, no person can be compelled to give evidence which might incriminate him or herself. Furthermore, section 14 of the Constitution provides that everyone has the right not to have their persons or property searched, or their possessions seized.
Warrants, in this context, essentially function as the courts giving the nod to the government that the search or seizure contemplated is consistent with the section 36 limitations clause of the Constitution, which can limit the aforementioned rights. It is therefore a constitutional imperative, in line with South Africa’s common law criminal procedure tradition, that before any kind of search or seizure can take place, a warrant must be obtained, with very strict and narrow exceptions.