scholarly journals HUNG OUT TO DRY? ATTORNEY-CLIENT CONFIDENTIALITY AND THE REPORTING DUTIES IMPOSED BY THE FINANCIAL INTELLIGENCE CENTRE ACT 38 OF 2001

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Daleen Millard ◽  
Viviana Vergano
Keyword(s):  
South African ◽  
Money Laundering ◽  
Private Information ◽  
Legal Profession ◽  
Organised Crime ◽  
Constitutional Court ◽  
The South ◽  
Important Principle ◽  
Client Relationship ◽  
Legal Professional

According to the South African Law Reform Commission, money laundering is the manipulation of illegally acquired wealth in order to obscure its true source or nature. This is achieved by performing a series of transactions with the proceeds of criminal activities that, if successful, will leave the illegally derived proceeds appearing as a product of legitimate transactions or investments. Professional money laundering assists and strengthens organised crime and may contribute to the undermining of the civil society and the financial system of a country. Attorneys as professionals are no doubt in a precarious position. On the one hand there is the duty to keep in confidence private information pertaining to clients’ affairs which is no doubt essential to the attorney-client relationship and on the other hand there is the duty to the community to uphold the ethics of the profession. Attorneys may find that they are caught between these seemingly conflicting duties and the question is which duty is more important. This article weighs the newly-imposed duties on the legal profession pertaining to money laundering against the equally important principle of attorney-client privilege and asks whether it is possible to reconcile anti-money laundering obligations with legal professional privilege. The article considers the latter duty in light of the ethics of the legal profession in South Africa and the foundation of legal professional conduct. In addition, the position in the United Kingdom and in Canada is also considered. Against this background it is argued that there is no need to regulate the South African professional legal industry any further. Until FICA’s reporting provisions are formally challenged in the Constitutional Court, attorneys will continue to remain uncertain as totheir position, notwithstanding the fact that guidance notes have been issued to aid attorneys in this regard. In order to comply with FICA and simultaneously preserve the attorney-client relationship, attorneys need to educate clients on the provisions of FICA. Furthermore, legal practitioners should have a sound legal knowledge of FICA in order help the State combat organised crime and laundering activities. Finally, it is advisable to keep up to date with the latest guidelines which regarding the independence of the profession; possible infringements of the fundamental right to privacy and potential threats to the confidential attorney-client relationship. It is the awareness of this precarious balance that will ensure compliance with the FICA without causing the attorneys’ profession to lose its credibility. 

South Africa Passes a ‘Crime-busting’ Statute

2000 ◽  
Vol 44 (1) ◽  
pp. 130-132
Keyword(s):  
South Africa ◽  
South African ◽  
Money Laundering ◽  
Organized Crime ◽  
Rapid Growth ◽  
Organised Crime ◽  
The South ◽  
Direct Involvement ◽  
Criminal Gang

The Prevention of Organised Crime Act, 1998, and its two amendment Acts passed in 1999 represent a major effort on the part of the South African authorities to combat the rapid growth in organized crime, money laundering and criminal gang activities both nationally and internationally. The Preamble to the 1998 Act provides a useful background. It states that because it is:“usually very difficult to prove the direct involvement of organised crime leaders in particular cases, because they do not perform the actual criminal activities themselves, it is necessary to criminalise the management of, and related conduct in connection with enterprises which are involved in a pattern of racketeering activity.”

Better Late than Never: Lessons from S V Jordan in Strengthening Women’s Participation in Litigation

2017 ◽  
Vol 30 (2) ◽  
pp. 505-518
Author(s):  
Amanda Spies
Keyword(s):  
Gender Equality ◽  
South African ◽  
Sex Work ◽  
Constitutional Court ◽  
Amicus Curiae ◽  
The South ◽  
Women's Participation

In 2002 the South African Constitutional Court rejected the decriminalisation of sex work and for many years the judgment has constricted further debate on the topic. In 2013 organisations such as the Commission for Gender Equality have again publicly committed themselves toward lobbying for the decriminalisation of sex work. The renewed debate has necessitated a reconsideration of the Court’s decision in S v Jordan and this article focuses on the organisations that participated as amicus curiae in the matter. The discussion highlights the importance of organisational participation in litigation and how this participation could provide the context in which to consider future debates on the topic. 

scholarly journals The Law and Practice of Criminal Asset Forfeiture in South African Criminal Procedure: A Constitutional Dilemma

2017 ◽  
Vol 17 (3) ◽  
pp. 1069
Author(s):  
Vinesh Basdeo
Keyword(s):  
Human Rights ◽  
South African ◽  
Justice System ◽  
Organised Crime ◽  
Primary Objective ◽  
The South ◽  
European Court ◽  
Proceeds Of Crime ◽  
Asset Forfeiture ◽  
South African Constitution

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals.[1] The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution.[2] This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications? 

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

2021 ◽  
Vol 8 (2) ◽  
pp. 149-174
Author(s):  
Paul Nkoane
Keyword(s):  
United States ◽  
Supreme Court ◽  
South African ◽  
General Public ◽  
The United States ◽  
Constitutional Court ◽  
United States Supreme ◽  
The South ◽  
Case Selection ◽  
The Supreme Court

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

You Break it, You Own it: South African Assembly Jurisprudence after Garvis

ICL Journal ◽  
2015 ◽  
Vol 9 (4) ◽  
Author(s):  
Stu Woolman
Keyword(s):  
South African ◽  
Strict Liability ◽  
Constitutional Court ◽  
The South

AbstractCan one square the invariably raucous natures of demonstrations and gatherings, and the fundamental right to assembly, with the imposition of strict liability upon the organizers for any harm to person or damage to property caused by an assembly, demonstration and gathering? The South African Constitutional Court in Garvis

scholarly journals Sideswipes and Backhanders: Abolition of the Reasonable Chastisement Defence in South Africa

2020 ◽  
Vol 34 (2) ◽  
pp. 191-203
Author(s):  
Julia Sloth-Nielsen
Keyword(s):  
South Africa ◽  
South African ◽  
Corporal Punishment ◽  
Cultural Beliefs ◽  
Freedom Of Religion ◽  
Constitutional Court ◽  
Correct Decision ◽  
The South ◽  
Constitutional Development ◽  
History Of

Abstract This article reviews the abolition of the defence of reasonable chastisement by the South African Constitutional Court on the grounds that it infringes the Constitution. After detailing the history of the abolition of corporal punishment in a democracy with the Constitution as supreme law, the article dissects the reasoning of the Constitutional Court. It argues that judgment in Freedom of Religion South Africa v Minister of Justice and Constitutional Development (hereafter FORSA), whilst overall positive in its result, is probably a low water mark in the development of children’s rights jurisprudence in South Africa. There are a number of inadequacies and strangely deferential statements in the FORSA decision. Whilst inescapably coming to the constitutionally correct decision, the reluctance of the Court to reach this point, and its desire to accommodate the religious and cultural beliefs of the appellants, is evident. The way forward has, as a result, been left rather obscure.

Sign in / Sign up

Export Citation Format

Share Document