Legal experts brush off Zuma's objections to Fica Bill

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South Africa's President Jacob Zuma visits a the family of the late freedom fighter Riot Mkhwanazi in Kwadlangezwa, South Africa, December 6, 2016.

PARLIAMENT – Independent legal counsel for Parliament, Ishmael Semenya, on Wednesday told a public hearing on the Financial Intelligence Centre Amendment (Fica) Bill that President Jacob Zuma’s objections to it were misplaced.

“The National Assembly would be perfectly entitled to simply reaffirm it in its current form,” Semenya told MPs and other parties making submissions on the bill, which was approved by Parliament last May.

Zuma has refused to sign it for fear that the bill would not pass constitutional muster because it allows, in Section 45, for warrantless searches. He sent it back to Parliament for review.

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Semenya argued that the case law citation on which Zuma based his objections was not appropriate as the legal provisions that were struck down by the Constitutional Court in the cases his lawyers referred to were much wider than those of section 45(b)(i)(c), and therefore deemed an impermissible infringement on privacy.

He concurred with senior legal parliamentary law advisor Frank Jenkins that the Constitutional Court allowed warrantless searches in narrowly defined circumstances. In this case, the bill allows Financial Intelligence Centre inspectors to carry out searches where the delay in applying for a warrant would frustrate the object of the search and they were persuaded that had they approached a court for a warrant, the court would have granted it.

“I do not agree that the mere fact that the it says there may be a warrantless search creates a constitutional difficulty,” Semenya said.

Advocate Jeremy Gauntlett, for National Treasury (the custodian of the bill), argued that the president’s objection was “in our view, not sound”.

He said Parliament could opt to affirm the bill as is, or could “neaten” the wording of the clause in question further to make its limitations explicit to address concerns and prevent needless legal challenges.

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Objections to the bill in its current form came from the Black Business Council and the Progressive Professionals Forum (PPF), who argued that banks already had far too much power and that it would be wrong to give finance sector inspectors the power to search homes without warrant or warning.

Economic Freedom Fighters deputy leader Floyd Shivambu objected that the scope of the hearings was limited to Zuma’s objection to warrantless searches and the two groups therefore could not raise their own problems with its provisions. He clashed heatedly with the PPF’s Jimmy Manyi after implying the group was a “criminal syndicate”.

Shivambu drew fire again when he suggested that after the ANC majority in Parliament approved the bill, Zuma “got instructions from elsewhere, I don’t know where” to send the bill back to Parliament for review.

Yunus Carrim, the ANC chairman of Parliament’s joint standing committee on finance, began interrupting, but Shivambu cut him off, saying: “The integrity of the president can be questioned and we must… It is not out of the confines of Parliament to say his control is elsewhere.”

Treasury has repeatedly warned that South Africa’s standing with the international finance community would be compromised, and that finance costs would rise, if it failed to implement the stricter controls set out in the legislation speedily.