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GOVERNMENT GAZETTE

OF THE

REPUBLIC OF NAMIBIA

N$27.20 WINDHOEK - 14 December 2012 No. 5096

CONTENTS

Page

GOVERNMENT NOTICE

No. 299 Promulgation of Financial Intelligence Act, 2012 (Act No. 13 of 2012), of the

Parliament .......................................................................................................................... 1

________________

Government Notice

OFFICE OF THE PRIME MINISTER

No. 299 2012

PROMULGATION OF ACT

OF PARLIAMENT

The following Act which has been passed by the Parliament and signed by the President

in terms of the Namibian Constitution is hereby published in terms of Article 56 of that

Constitution.

No. 13 of 2012: Financial Intelligence Act, 2012.

_______________

2 Government Gazette 14 December 2012 5096

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

ACT

To to provide for the establishment of the Financial Intelligence Centre

as the national centre responsible for collecting, requesting, receiving

and analysing suspicious transaction reports and suspicious activity

reports which may relate to possible money laundering or the financing

of terrorism; to provide for the objects, powers and functions of the

Centre; to provide for the combating of money laundering and financing

of terrorism activities; to provide for the establishment of the Anti-Money

Laundering and Combating of the Financing of Terrorism Council, and for

its functions; to provide for the registration of accountable and reporting

institutions; to provide for the powers and functions of the supervisory

bodies; to empower the Minister to appoint an appeal board to hear and

decide appeals against decisions of the Centre or supervisory bodies; and

to provide for incidental matters.

(Signed by the President on 24 December 2012)

ARRANGEMENT OF SECTIONS

PART 1

PRELIMINARY PROVISIONS

Section

1. Definitions

2. Application of Act to accountable and reporting institutions

3. Application of Act to supervisory and regulatory bodies

4. Application of Act to Registrar of Companies and Close Corporations

5. Application of Act to Master of High Court

6. Application of Act when in conflict with other laws

PART 2

FINANCIAL INTELLIGENCE CENTRE AND ITS

ADMINISTRATION AND STAFF

7. Establishment of Financial Intelligence Centre

8. Objects of Centre

9. Powers and functions of Centre

10. Administrative powers of Centre

11. Appointment and removal of Director

12. Responsibilities of Director

13. Staff of Centre

14. Funds of Centre

15. Audit

16. Delegation

PART 3

ANTI-MONEY LAUNDERING AND COMBATING

FINANCING OF TERRORISM COUNCIL

17. Establishment of Council

18. Constitution, conditions of office and vacation of office

5096 Government Gazette 14 December 2012 3

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

19. Powers and functions of Council

20. Meetings and procedures

PART 4

MONEY LAUNDERING AND FINANCING OF TERRORISM CONTROL

MEASURES, DUTY TO IDENTIFY CLIENTS, CONDUCT ONGOING AND

ENHANCED DUE DILIGENCE, KEEP RECORDS AND REPORT SUSPICIOUS

TRANSACTIONS AND SUSPICIOUS ACTIVITIES

21. Identification when business relationship is established or single transaction is

concluded

22. Identification when transaction is concluded in the course of business

relationship

23. Risk clients

24. On-going and enhanced due diligence

25. Identification and account-opening for cross-border correspondent banking

relationships

26. Records to be kept of business relationships and transactions

27. Period for which records must be kept

28. Centralisation of records

29. Records may be kept by third parties

30. Admissibility of records

31. Centre has access to records

32. Cash transactions above prescribed limits

33. Suspicious transactions and suspicious activities

34. Electronic transfers of money to, from and within Namibia

35. Obligations of and reporting by supervisory bodies

36. Declaration of cross border movement of cash and bearer negotiable instruments

amounting to or exceeding an amount determined by the Centre

37. Powers of officers of Customs and Excise and Post Office in respect of cash and

bearer negotiable instruments being conveyed into or out of Namibia

38. Making declarations on cash and bearer negotiable instruments available to the

Centre

39. Obligations by accountable and reporting institutions

40. Reporting procedures

41. Continuation of suspicious transactions

42. Intervention by Centre

43. Monitoring orders

44. Reporting duty not affected by confidentiality rules

45. Protection of persons making reports

46. Tipping off

47. Admissibility as evidence of reports made to Centre

48. Access to information held by Centre

49. Protection of confidential information

50. Protection of informers and information

PART 5

COMPLIANCE AND ENFORCEMENT OF ACT

51. Exhausting of other measures before penalties

52. Appointment of inspectors

53. Inspections

54. Directives

4 Government Gazette 14 December 2012 5096

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

55. Enforceable undertakings and enforcement

56. Administrative sanctions

57. Appeal board

58. Appeals

59. Referral of suspected offences to competent authorities or Prosecutor-General

60. Application to court

61. Powers of authorised officers

62. Release of property, record, report or document seized

PART 6

OFFENCES AND PENALTIES

63. Offences in general

64. Jurisdiction of magistrates courts in respect of offences

65. Offences committed by person acting in official capacity

PART 7

MISCELLANEOUS

66. Act not to limit powers of investigation authorities

67. Regulations

68. Indemnity

69. Service of notices

70. Exemptions

71. Documents tracking

72. Repeal of laws

73. Transitional provisions and savings

74. Short title and commencement

SCHEDULE 1 Accountable Institutions

SCHEDULE 2 Supervisory Bodies

SCHEDULE 3 Reporting Institutions

SCHEDULE 4 Regulatory Bodies

BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:

PART 1

PRELIMINARY PROVISIONS

Definitions

1. (1) In this Act, unless the context indicates otherwise -

“accountable institution” means a person or institution referred to in Schedule 1,

including branches, associates or subsidiaries outside of that person or institution and a

person employed or contracted by such person or institution;

“authorised officer” means any member of -

(a) the Namibian Police Force authorised by the Inspector-General of the Namibian

Police Force;

(b) the office of the Prosecutor-General authorised by the Prosecutor-General; or

5096 Government Gazette 14 December 2012 5

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

Central Intelligence Service;

(d) the Centre authorised by the Director;

(e) the Anti-Corruption Commission authorised by the Director of the Anti-

Corruption Commission;

(f) a supervisory body or any person authorised by the Head of the supervisory

body;

(g) an investigating authority that may, in terms of any law, investigate unlawful

activities who may act under this Act;

“Bank” means the Bank of Namibia established by the Bank of Namibia Act, 1997 (Act

No. 15 of 1997);

“bearer negotiable instrument” for the purposes of this Act, means any instrument that

may on demand by the bearer thereof be converted to the currency of Namibia or that

of another country and includes, amongst others, cheques, promissory notes and money

orders;

“beneficial owner” means -

(a) a natural person who owns or effectively controls a client, including the natural

person on whose behalf a transaction is conducted; or

(b) a natural person who exercises effective control over a legal person or trust,

and a natural person is deemed to own or effectively control a client when the person -

(i) owns or controls, directly or indirectly, including through trusts or

bearer share holdings for any legal person, 20% or more of the shares

or voting rights of the entity;

(ii) together with a connected person owns or controls, directly or indirectly,

including through trusts or bearer share holdings for any legal person,

20% or more of the shares or voting rights of the entity;

(iii) despite a less than 20% shareholding or voting rights, receives a large

percentage of the person’s declared dividends; or

(iv) otherwise exercises control over the management of the person in his or

her capacity as executive officer, non-executive director, independent

non-executive director, director, manager or partner.

“business relationship” means an arrangement between a client and an accountable or

reporting institution for the purpose of concluding transactions on a regular basis;

“cash” means -

(a) coin and paper money of Namibia or of another country which coin or paper

money is designated as legal tender and which circulates as, and is customarily

used and accepted as, a medium of exchange in the country of issue;

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(b) travelers’ cheques; or

business of a casino, gambling institution or totalisator betting service; or

(d) payment instrument, but only in respect of stored value;

“Centre” means the Financial Intelligence Centre established by section 7;

“client” means a person who has entered into a business relationship or a single

transaction with an accountable or reporting institution, and the word “customer” has a

corresponding meaning;

“competent authority” means any supervisory, the Namibian Police Force, the Anti-

Corruption Commission, the Namibia Central Intelligence Service, the Prosecutor-

General, the Centre and any other authority that may, in terms of any law, investigate

unlawful activities;

“correspondent banking” means the provision of banking, payment and other services

by one bank “the correspondent bank” to another bank “the respondent bank” to enable

the latter to provide services and products to its clients;

“Council” means the Anti-Money Laundering and Combating the Financing of Terrorism

Council established by section 17;

“customer due diligence” means a process which involves establishing the identity of

a client, the identity of the client’s beneficial owners in respect of legal persons and

monitoring all transactions of the client against the client’s profile;

“Customs and Excise” means a division in the Ministry responsible for finance that is

entrusted with customs and excise responsibilities as envisaged by the Customs and

Excise Act, 1989 (Act No. 20 of 1998);

“determination” means a determination made under this Act and published by notice in

the Gazette;

“electronic transfer” means any transaction carried out on behalf of an originator person,

both natural and legal, through an accountable or reporting institution in Namibia or an

accountable or reporting institution in a foreign country by way of electronic means

with a view to making an amount of money available to a beneficiary person at the same

or another institution (the originator and the beneficiary may be the same person), and

excludes debit orders and stop orders for payment of instalments and premiums;

“establish identity” means a two tier process consisting of ascertainment or collecting

of certain identification information, and verification of some of the information against

reliable documentation or information;

“financing of terrorism” has the meaning ascribed to it by an Act of the Parliament

of the Republic of Namibia which criminalizes the conduct of terrorist financing and

includes acts which is aimed at directly or indirectly providing or collecting funds with

the intention that such funds should be used, or with the knowledge that such funds

are to be used, in full or in part, to carry out any act of terrorism as defined in the

5096 Government Gazette 14 December 2012 7

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

Organization for African Unity (OAU) Convention on the Prevention and Combating

of Terrorism of 1999, irrespective of whether or not the funds are actually used for such

purpose or to carry out such acts;

“forfeiture” means the official transfer of property to the State;

“Fund” means the Criminal Assets Recovery Fund established by section 74 of the

Prevention of Organised Crime Act;

“Government” means the Government of the Republic of Namibia;

“Governor” means the Governor as referred to in section 1 of the Bank of Namibia Act,

1997(Act No. 15 of 1997);

“inspector” means a person appointed in terms of section 53 to conduct inspections in

terms of this Act;

“Intelligence Service” means the Namibia Central Intelligence Service established

under the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of 1997);

“investigating authority” means an authority that in terms of legislation may investigate

unlawful activities;

“Minister” means the Minister responsible for finance;

“money laundering” or “money laundering activity” means -

(a) the act of a person who -

(i) engages, directly or indirectly, in a transaction that involves proceeds

of any unlawful activity;

(ii) acquires, possesses or uses or removes from or brings into Namibia

proceeds of any unlawful activity; or

(iii) conceals, disguises or impedes the establishment of the true nature,

origin, location, movement, disposition, title of, rights with respect to,

or ownership of, proceeds of any unlawful activity;

where -

(aa) as may be inferred from objective factual circumstances, the

person knows or has reason to believe, that the property is

proceeds from any unlawful activity; or

(bb) in respect of the conduct of a person, the person without

reasonable excuse fails to take reasonable steps to ascertain

whether or not the property is proceeds from any unlawful

activity; and

(b) any activity which constitutes an offence as defined in section 4, 5 or 6 of the

Prevention of Organised Crime Act;

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

“payment instrument” has the meaning attributed to that term in section 1 of the Payment

System Management Act, 2003 (Act No. 18 of 2003);

“person” means a natural or legal person;

“prescribed” means prescribed by regulation;

“Prevention of Organised Crime Act” means the Prevention of Organised Crime Act,

2004 (Act No. 29 of 2004);

“proceeds of unlawful activities” has the meaning attributed to that term in section 1 of

the Prevention of Organised Crime Act;

“property” has the meaning attributed to that term in section 1 of the Prevention of

Organised Crime Act;

“prospective client” means a person seeking to conclude a business relationship or a

single transaction with an Accountable institution;

“records” means any material on which information is recorded or marked and which

is capable of being read or understood by a person, or by an electronic system or other

device;

“Registrar of Companies and Close Corporations” means the Registrar of Companies

as defined in the Companies Act, 2004 (Act No. 28 of 2004) and the Registrar of Close

Corporations as defined in the Close Corporation Act, 1988 (Act No. 26 of 1988);

“regulation” means a regulation made under section 68;

“regulatory body” means a functionary or institution set out in Schedule 4;

“reporting institutions” means a person or institution set out in Schedule 3;

“risk clients” means any person, natural or legal whose activities pose a risk for money

laundering or financing of terrorism activities;

“risk management systems” means policies, procedures and controls that enables an

accountable institution to establish the risk indicators used to characterise clients,

products and services to different categories of risk (low, medium or high risk) with the

aim of applying proportionate mitigating measures in relation to the potential risk of

money laundering or terrorist financing in each category of risk established;

“senior management” with respect to a legal person or trust, includes a director,

controlling officer, partner or any person who is concerned with the management of its

affairs;

“single transaction” means a transaction other than a transaction concluded in the course

of a business relationship;

“supervisory body” means a functionary or institution set out in Schedule 2;

“transaction” means a transaction concluded between a client and an accountable or

reporting institution in accordance with the type of business carried on by that institution,

and includes attempted transactions;

5096 Government Gazette 14 December 2012 9

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

“this Act”, includes regulations and determinations; and

“unlawful activity” has the meaning assigned to it in section 1 of the Prevention of

Organised Crime Act.

Application of Act to accountable and reporting institutions

2. (1) This Act applies to all accountable and reporting institutions

set out in Schedule 1 and Schedule 3, respectively.

(2) The Minister, by notice in the Gazette, may amend the list of accountable

or reporting institutions in Schedule 1 or Schedule 3 to -

(a) add to the list any institution or category of institutions if the Minister

reasonably believes that institution or category of institutions is used,

and is likely to be used in future, for money laundering or financing of

terrorism purposes;

(b) delete any institution or category of institutions from the list if the

Minister reasonably believes that institution or category of institutions

is not used, and is not likely to be used in future, for money laundering

or financing of terrorism; or

(3) Before the Minister amends Schedule 1 or Schedule 3 under subsection

(2)(a) or (b), the Minister must consult the Council and the Centre, and -

(a) if only an individual institution will be affected by the proposed

amendment, give the institution at least 60 days written notice to submit

written representations to the Minister; or

(b) if a category of institutions will be affected by the proposed amendment,

by notice in the Gazette give institutions belonging to that category at

least 60 days written notice to submit written representations to the

Minister.

Application of Act to supervisory and regulatory bodies

3. (1) This Act applies to all supervisory bodies set out in Schedule

2, but applies only to the regulatory bodies set out in Schedule 4 to a limited extent,

and does not impose the same obligations to the regulatory bodies as it impose to the

supervisory bodies.

(2) The Minister may, by notice in the Gazette, amend the list of supervisory

or regulatory bodies in Schedule 2 or Schedule 4, respectively, to -

(a) add to the list any supervisory or regulatory body which in terms of

legislation performs supervisory or regulatory functions in relation to

any category of accountable institutions;

(b) delete any supervisory or regulatory body or category of supervisory or

regulatory body from the list if the Minister reasonably believes there

is need to do so; or

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(3) Before the Minister amends Schedule 2 or Schedule 4 under subsection

(2)(a) or (b), the Minister must consult the Council and the Centre, and give the Council,

Centre and the supervisory or regulatory body concerned, at least 60 days written notice

to submit written representations to the Minister.

Application of Act to Registrar of Companies and Close Corporations

4 (1) The Registrar of Companies and Close Corporations must, for

the purposes of this Act, in addition to information required for companies and close

corporations under any other law -

(a) annually collect and keep accurate and up-to-date prescribed information

in respect of members, directors, shareholders and beneficial owners of

companies and close corporations;

(b) forward to the Registrar of Deeds all changes to members, directors,

shareholders or beneficial owners information of companies and close

corporations which own immovable properties; and

and close corporations to competent authorities upon request.

(2) All companies and close corporations must upon registration, and

annually thereafter, submit to the Registrar of Companies and Close Corporations up-

to-date information referred to in subsection (1)(a) in respect of each member, director,

shareholder and beneficial owner of such companies and close corporations.

(3) The Registrar of Companies and Close Corporations may not register

or renew any registration of a company or close corporation without the information as

referred to in subsection (1)(a) being provided.

(4) If a company or close corporation was registered with the Registrar of

Companies and Close Corporations before this section came into effect, the Registrar

of Companies and Close Corporations must, within a period determined by the Centre,

take reasonable steps to obtain the information referred to in subsection(1)(a).

(5) All companies and close corporations registered with the Registrar of

Companies and Close Corporations before this section came into effect must annually

submit to the Registrar of Companies and Close Corporations up-to-date information

referred to in subsection (1)(a) in respect of each member, director, shareholder and

beneficial owner of such companies and close corporations.

(6) If the Registrar of Companies and Close Corporations is unable to

obtain, the information referred to in subsection (1)(a), within the period referred to in

subsection (4), the Registrar may de-register the relevant company or close corporation.

(7) If the company or close corporation refuses or fails to provide the

information referred to in subsection (1)(a), within the period referred to in subsection

(4), the company or close corporation commits an offence and is liable to a fine not

exceeding N$10 million, or where the commission of the offence is attributable to a

5096 Government Gazette 14 December 2012 11

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

representative of the company or close corporation, to such fine or imprisonment not

exceeding a period of 10 years, or to both such fine and such imprisonment, and in

addition the Registrar must de-register the relevant company or close corporation.

Application of Act to Master of High Court

5. (1) For the purposes of this Act, the Master of the High Court must -

(a) register all testamentary and inter vivos trusts in the prescribed manner

and form;

(b) collect and keep up-to-date prescribed information in respect of the

founder, each trustee, each income beneficiary and each beneficial

owner of all registered testamentary and inter vivos trusts; and

information of all registered testamentary and inter vivos trusts to

competent authorities upon request.

(2) The Master of the High Court may not register any trust without the

information referred to in subsection (1)(b) being provided.

(3) After having registered in terms of subsection (1)(a), a trust must

provide the Master of the High Court with all the information referred to in subsection

(1)(b).

(4) If a trust was registered with the Master of the High Court before this

section came into effect, the Master of the High Court must, within a period determined

by the Centre, take reasonable steps to obtain the information referred to in subsection

(1)(b).

(5) If a trust refuses or fails to register in terms of subsection (1)(a) or to

provide the information referred to in subsection (1)(b), within the period determined

under subsection (4), the trust commits an offence and is liable to a fine not exceeding

N$10 million, or where the commission of the offence is attributable to a representative

of the trust, to such fine or imprisonment not exceeding a period of 10 years, or to both

such fine and such imprisonment.

(6) An Accountable or reporting institution which has a business

relationship with any trust is required to inform the Master of the High Court and the

Centre if such a trust is not registered with the Master.

(7) The Master of the High Court is entitled to request from a relevant

accountable or reporting institution and the institution must provide the Master with

information relating to trust banking accounts for purposes of monitoring or investigating

the transaction activities or operations of any trust.

(8) An accountable or reporting institution which contravenes or fails

to comply with subsection (6) or (7) commits an offence and is liable to a fine not

exceeding N$10 million, or where the commission of the offence is attributable to a

representative of the accountable or reporting institution, to such fine or imprisonment

for a period not exceeding 10 years, or to both such fine and such imprisonment.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

Application of Act when in conflict with other laws

6. If any conflict relating to the matters dealt with in this Act arises

between this Act and any other law, a provision of this Act prevails.

PART 2

ESTABLISHMENT OF FINANCIAL INTELLIGENCE CENTRE AND

APPOINTMENT OF DIRECTOR AND STAFF OF CENTRE

Establishment of Financial Intelligence Centre

7. (1) There is established a national centre to be known as the

Financial Intelligence Centre, that is responsible for administering this Act, subject to

any general or specific policy directives which the Minister may issue.

(2) The Bank must provide administrative services to the Centre.

Objects of Centre

8. The principal objects of the Centre in terms of this Act are to combat

money laundering and the financing of terrorism activities in collaboration with the

other law enforcement agencies.

Powers and functions of Centre

9. (1) In furthering its objects the powers and functions of the Centre

are -

(a) to collect, request, receive, process, analyze and assess all reports,

requests for information and information received from persons,

accountable institutions, reporting institutions, government offices,

ministries, or agencies or any other competent authorities and any

foreign agencies, in terms of this Act or in terms of any law;

(b) to initiate an analysis of its own motion based on information in its

possession or information received from another source;

authorities and foreign agencies with powers and duties similar to that

of the Centre; and

(d) to make recommendations arising out of any information received;

(e) to collect statistics and records of -

(i) suspicious transactions reports, suspicious activity reports

and Requests for Information received and intelligence

disseminated;

(ii) money laundering and terrorist financing investigations,

prosecutions and convictions;

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(iii) property frozen, seized and confiscated under the Prevention

of Organised Crime Act, or any other law applicable to the

Republic of Namibia;

(iv) mutual legal assistance or other international requests for co-

operation;

(v) on-site examinations conducted by the Centre or supervisory

bodies and any enforcement actions taken; and

(vi) formal request for assistance made or received by supervisory

or regulatory bodies relating to money laundering and financing

of terrorism and outcomes of such requests;

(f) to coordinate the activities of the various persons, bodies or institutions

involved in the combating of money laundering and the financing of

terrorism;

(g) to inform, advise and cooperate with competent authorities and

exchange information, available to the Centre, with these authorities for

the purpose of administration, intelligence collection, law enforcement

and prosecution;

(h) to supervise, monitor and enforce compliance with this Act, or any

regulations, directives, determinations, notices or circulars issued in

terms of the Act, by accountable and reporting institutions and give

guidance to Accountable and reporting institutions to combat money

laundering or financing of terrorism activities, and

(i) to facilitate effective supervision and enforcement of the Act by

supervisory bodies.

(2) In order to attain its objects and perform its functions the Centre may -

(a) call for and obtain further information from persons or bodies that are

required to supply or provide information to it in terms of this Act or

any law;

(b) request for information and statistics, from any government office,

ministry or agency, law enforcement agency, competent authority,

regulatory body and supervisory body, whether listed in Schedule 2

and Schedule 4 or not, for purposes of this Act;

take such steps as may be appropriate in relation to any information or

report received by the Centre, to enforce compliance with this Act or to

facilitate any investigation anticipated by the Centre;

(d) issue determinations to any supervisory body in terms of which the

supervisory body must enforce compliance by an accountable or

reporting institution regulated by such supervisory body, with the

provisions of this Act;

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(e) after consultation with supervisory and regulatory bodies, issue

guidelines, directives, determinations, circulars or notices to accountable

and reporting institutions to ensure compliance with this Act;

(f) conduct research into trends and developments in the area of money

laundering and financing of terrorism and improved ways of detecting,

preventing and deterring money laundering and financing of terrorism;

(g) exercise any other power or to do any other thing not inconsistent with

this Act, which is necessary or expedient to ensure the achievement of

the objects of this Act; and

(h) exercise any power or perform any functions conferred to or imposed

on it by any law.

(3) The Centre may from time to time consult with the Council on issues of

mutual interest with regard to the powers and functions of the Centre under this Act.

(4) Subject to section 7, a person may not unduly influence or interfere

with the Centre in exercising its powers and performing its functions as authorised in

terms of this Act.

(5) A person who contravenes subsection (4) commits an offence and

is liable to a fine not exceeding N$100 million or to imprisonment for a period not

exceeding 30 years or to both such fine and imprisonment.

Administrative powers of Centre

10. The Centre, with the concurrence of the Governor, may do all that is

necessary or expedient to perform its functions effectively, which includes the power to

(a) determine its own staff establishment with the approval of the Minister;

(b) appoint employees and receive seconded personnel to posts on its staff

establishment in accordance with staff policies and procedure of the

Bank as far as reasonably possible;

department, functionary or institution, to perform any specific act or

function;

(d) engage in any lawful activity, whether alone or together with any other

organisation in Namibia or elsewhere, aimed at promoting its objects.

Appointment and removal of Director

11. (1) The Minister, after consultation with the Council, must appoint

a suitably qualified, fit and proper person as the Director of the Centre.

(2) A person appointed as Director holds office -

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(a) for a term of five years, which term is renewable; and

(b) on terms and conditions set out in a written employment contract.

(3) A person may not be appointed as Director, unless -

(a) information with respect to that person has been gathered in a security

screening investigation by the National Intelligence Agency established

by the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of

1997); and

(b) the Minister, after evaluating the gathered information, is satisfied that

the person may be so appointed without the possibility that such person

may pose a security risk or that such person may act in any manner

prejudicial to the objects of this Act or the functions of the Centre.

(4) The Director may at any time determined by the Minister, upon

recommendation by the Council, be subjected to a further security screening investigation

as contemplated in subsection (3)(a).

(5) The Minister, upon recommendation by the Council, may remove the

Director from office on the grounds of misconduct, incapacity or incompetence, in line

with fair labour practices and the prevailing labour legislation.

(6) The Minister, upon recommendation by the Council, may suspend the

Director from office, pending -

(a) the determination of any disciplinary enquiry as to whether grounds of

misconduct, incapacity or incompetence exist; or

(b) the outcome of a security screening investigation referred to in

subsections (3) and (4).

Responsibilities of Director

12 (1) The Director is responsible for -

(a) the performance by the Centre of its functions;

(b) implementation and administration of applicable provisions of this Act;

(d) reporting functionally to the Council;

(e) the management of the staff, resources and administration of the Centre;

(f) dissemination of intelligence involving suspected proceeds of crime,

money laundering, terrorist property or financing of terrorism, to

competent authorities and foreign agencies with powers and duties

similar to that of the Centre;

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(g) providing relevant advice to the Council;

(h) providing advice and guidance to assist accountable institutions,

reporting institutions and supervisory bodies to comply with their

obligations under this Act; and

(i) advise the Council on aligning the National Anti-Money Laundering and

Combating the Financing of Terrorism framework with international

Anti-Money Laundering and Combating the Financing of Terrorism

standards and best practices.

Staff of Centre

13. (1) For the purposes of assisting the Director in the performance

of the functions of the Centre, the Director, with the concurrence of the Governor, may

appoint persons as staff members of the Centre.

(2) The Governor may –

(a) assign staff members of the Bank to the Centre;

(b) request an office, ministry, or agency as defined in the Public Service

Act, 1995 (Act No. 13 of 1995), to second a staff member of the Public

Service to the Centre for the purposes of assisting the Centre in carrying

out its functions in terms of this Act.

(3) Staff members referred to in subsections (1) and (2) perform their duties

under the supervision, control and directions of the Director.

(4) A person may not be appointed or seconded to perform any of the

functions of the Centre unless -

(a) information with respect to that person has been gathered in a security

screening investigation by the National Intelligence Agency established

by the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of

1997); and

(b) the Director, with the concurrence of the Governor, after evaluating the

gathered information, is satisfied that the person may be so appointed

or seconded without the possibility that the person poses a security

risk or that the person may act in any way prejudicial to the objects or

functions of the Centre and the objects of this Act.

(5) Any person referred to in subsection (4) may at any time determined

by the Director, with the concurrence of the Governor, be subjected to a further security

screening investigation as contemplated in subsection (4)(a).

Funds of Centre

14. (1) For the purpose of exercising its powers and performing its

functions conferred and imposed by or under this Act the Centre must utilize funds

available from -

5096 Government Gazette 14 December 2012 17

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(a) money appropriated annually by Parliament for the purposes of the

Centre;

(b) any Government grants made to the Centre;

(d) any other money legally acquired by the Centre.

(2) The Centre, with the approval of the Minister, may accept financial

donations or contributions from any other source.

(3) For the purpose of subsection (1)(a), the Director must prepare

the annual budget of the Centre for consideration by the Council and its subsequent

recommendation to the Minister for approval.

Audit

15. All the financial matters of the Centre relating to the Centre’s exercising

of its powers and performance of its functions in terms of this Act must be kept separate

from that of the Bank and must be audited separately.

Delegation

16. (1) The Director may delegate, in writing, any of the powers

entrusted to the Centre in terms of this Act to any employee of the Centre, or assign an

employee of the Centre to perform any of the functions imposed on the Centre in terms

of this Act.

(2) A delegation or instruction in terms of subsection (1) -

(a) is subject to the limitations or conditions that the Director may impose;

and

(b) does not divest the Director of the responsibility concerning the exercise

of the delegated power or the performance of the assigned function.

(3) The Director may confirm, vary or revoke any decision taken by an

employee in consequence of a delegation or instruction in terms of subsection (1),

provided that no such variation or revocation of a decision may detract from any rights

that may have accrued as a result of the decision.

PART 3

ANTI-MONEY LAUNDERING AND COMBATING FINANCING

OF TERRORISM COUNCIL

Establishment

17. There is established an Anti-Money Laundering and Combating the

Financing of Terrorism Council.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

Constitution, conditions of office and vacation of office

18. (1) The Minister must appoint members of the Council which

consists of -

(a) the Governor or his or her delegate who is the chairperson;

(b) the Permanent Secretary of the Ministry responsible for finance;

(d) the Permanent Secretary of the Ministry responsible for trade;

(e) the Permanent Secretary of the Ministry responsible for justice;

(f) the Permanent Secretary of the Ministry responsible for safety and

security;

(g) the Director of the Namibian Central Intelligence Service;

(h) the Chief Executive Officer of the Namibia Financial Institutions

Supervisory Authority;

(i) the Director of the Anti-Corruption Commission;

(j) the President of the Bankers Association;

(k) one person representing associations representing a category of

accountable or reporting institutions requested by the Minister to

nominate representatives; and

(l) one person representing supervisory bodies requested by the Minister

to nominate representatives.

(2) The Council may invite persons who may have special knowledge or

skills in any relevant field or discipline to attend its meetings and advise the Council but

such persons have no voting right.

(3) The members of the Council must elect a deputy chairperson at the first

meeting of the Council.

(4) Any vacancy in the Council must, subject to subsection (1), be filled by

the appointment of a new member.

(5) A member of the Council who is in the employment of the State may

be paid such allowances for traveling and subsistence expenses incurred by him or her

in the performance of his or her functions in terms of this Act, out of the funds of the

Centre, as the Minister may determine.

(6) A member of the Council, who is not in the employment of the State,

may be paid such remuneration, including allowances, for traveling and subsistence

expenses incurred by him or her in the performance of his or her functions in terms of

this Act, out of the funds of the Centre, as the Minister determines.

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(7) The office of a member of the Council becomes vacant if that member -

(a) by a written notice addressed to the Minister, resigns from office;

(b) is removed from office by the Minister for inability to perform his or

her duties due to ill health; or

(8) Before removing a member from office in terms of subsection (7)(c),

the Minister must -

(a) in writing, notify the member concerned of the grounds on which the

member is to be removed from membership of the Council;

(b) give that member an opportunity to make an oral or a written

representation on the matter to the Minister or to any other person

designated by the Minister for that purpose; and

Functions

19. (1) The functions of the Council are to -

(a) on the Minister’s request or at its own initiative, advise the Minister

on -

(i) policies and measures to combat money laundering and

financing of terrorism activities; and

(ii) the exercise by the Minister of the powers entrusted to the

Minister under this Act;

(b) consult, when necessary, with the Centre, associations representing

categories of accountable or reporting institutions, offices, ministries

or government agencies, supervisory bodies, regulators and any other

person, institution, body or association, as the Council may determine,

before it takes a policy decision which may impact on such institutions;

(d) consider and recommend the proposed budget of the Centre to the

Minister for approval;

(e) consider and recommend the human and other resources required by

the Centre to effectively carry out its functions in terms of this Act to

the Minister for approval; and

(f) recommend to the Minister the appointment or removal of the Director.

(2) The Centre must provide administrative support for the Council to

function effectively.

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Meetings and procedures

20. (1) The chairperson of the Council, or in his or her absence, the

deputy Chairperson, presides at meetings of the Council, or if both the chairperson

and the deputy chairperson are absent from the meeting, or are unable to preside at the

meeting, the members present must elect one member from among their number to

preside at the meeting.

(2) The Council -

(a) must, at a time and place determined by the chairperson of the Council,

hold a meeting of the Council at least three times in a year;

(b) may determine its own procedures at meetings; and

of its functions or the exercise of its powers.

(3) Any person who is not a member of the Council may be co-opted to

serve on the committees mentioned in subsection (2)(c).

(4) When a provision of this Act requires consultation with the Council on

any specific matter before a decision may be taken on that matter and it is not feasible

to call a meeting of the Council, that provision is satisfied if -

(a) a proposed decision on that matter is circulated to the members of the

Council; and

(b) an opportunity is given to them individually to comment in writing on

the proposed decision within a reasonable time.

(5) Despite subsection (2)(a), the chairperson of the Council or, in his or

her absence, the deputy chairperson of the Council -

(a) may convene a special meeting of the Council;

(b) must, at the written request of the Minister or of at least three members

of the Council, convene a special meeting of the Council.

(6) The majority of all the members of the Council constitute a quorum for

any meeting of the Council.

(7) A decision of a majority of members of the Council present at a meeting

is the decision of the Council and, if there is an equality of votes, the person presiding

at the meeting has a casting vote in addition to his or her ordinary vote.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

PART 4

MONEY LAUNDERING AND FINANCING OF TERRORISM CONTROL

MEASURES DUTY TO IDENTIFY CLIENTS, CONDUCT ONGOING

AND ENHANCED DUE DILIGENCE, KEEP RECORDS AND

REPORT SUSPICIOUS TRANSACTION

AND SUSPICIOUS ACTIVITIES

Identification when business relationship is established or single transaction is

concluded

21. (1) For the purposes of this Part, multiple cash transactions in the

domestic or foreign currency which, in aggregate, exceed the amount determined by the

Centre must be treated as a single transaction if they are undertaken by or on behalf of

any person during any day or such period as the Centre may specify.

(2) An accountable or reporting institution may not establish a business

relationship or conclude a single transaction with a prospective client, unless the

accountable or reporting institution has taken such reasonable steps in the prescribed

form and manner to establish -

(a) the identity of the prospective client, by obtaining and verifying

identification and any further information;

(b) if the prospective client is acting on behalf of another person, also-

(i) the identity of that other person;

(ii) the prospective client’s authority to establish the business

relationship or to conclude the single transaction on behalf of

that other person; and

(iii) obtain or verify further information about that other person;

and

(i) the identity of that other person;

(ii) that other person’s authority to act on behalf of the client; and

(iii) obtain or verify further information about that other person.

(d) Despite any exemption that may be granted in terms of this section,

an accountable or reporting institution must establish the identity of

a client if there is a suspicion of money laundering or financing of

terrorism.

(3) Without limiting the generality of subsection (2)(a) and (b), if a

prospective or existing client is a legal person, an accountable or reporting institution

must take reasonable steps to establish its legal existence and structure, including

verification of -

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(a) the name of the legal person, its legal form, address, directors, partners

or senior management;

(b) the principal owners and beneficial owners;

person purporting to act on behalf of the legal person is so authorised,

and identify those persons.

(4) An accountable or reporting institution must maintain the accounts in

the name of the account holder and must not open, operate or maintain any anonymous

account or any account which is fictitious, false or in incorrect name.

(5) An accountable or reporting institution which contravenes or fails to

comply with this section commits an offence and is liable to a fine not exceeding N$100

million or, where the commission of the offence is attributable to a representative of the

accountable or reporting institution, to such fine or to imprisonment for a period not

exceeding 30 years, or to both such fine and such imprisonment.

Identification when transaction is concluded in the course of business relationship

22. (1) If an accountable or reporting institution established a business

relationship with a client before this Act took effect, it must, within a period determined

by the Centre, take such reasonable steps in the prescribed form and manner -

(a) to establish the identity of the client, by obtaining and verifying

identification and any further information;

(b) if the client is acting on behalf of another person, to establish also -

(i) the identity of that other person;

(ii) the client’s authority to conclude that transaction on behalf of

that other person; and

(iii) obtain or verify further information about that other person;

and

client, to establish also -

(i) the identity of that other person;

(ii) that other person’s authority to act on behalf of the client; and

(iii) obtain or verify further information about that other person;

and

(d) to trace, on such conditions and period as the Centre may determine, all

accounts at that accountable or reporting institution that are involved in

transactions concluded in the course of that business relationship.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(2) If an accountable or reporting institution is unable within a reasonable

period to establish to its reasonable satisfaction the identity of any person as required by

subsection (1), it may not conclude any further transaction in the course of that business

relationship and must immediately file a suspicious activity report.

(3) When the identity of the person referred to in subsection (2) is

subsequently established, further transactions may only be concluded after the Centre

has been informed of the identity of that person.

(4) Subsection (l) does not apply in respect of a business relationship which

an accountable or reporting institution knows or reasonably believes to have ended prior

to the commencement of this Act.

(5) If, after this Act took effect, an accountable or reporting institution

recommenced a business relationship with a client or a business relationship referred to

in subsection (4), the accountable or reporting institution may not conclude a transaction

in the course of that business relationship unless the accountable or reporting institution

has taken such reasonable steps referred to in subsection (1).

(6) An accountable or reporting institution which contravenes or fails to

comply with subsection (1), (2), (3) or (5), commits an offence and is liable to a fine not

exceeding N$100 million or, where the commission of the offence is attributable to a

representative of the accountable or reporting institution, to such fine or imprisonment

for a period not exceeding 30 years, or to both such fine and such imprisonment.

Risk clients

23 (1) Accountable institutions must have appropriate risk

management and monitoring systems in place to identify clients or beneficial owners

whose activities may pose a risk of money laundering, financing of terrorism, or both.

(2) Where a client or beneficial owner has been identified through such

systems to be a high risk for money laundering, financing of terrorism, or both, the

employees of an accountable institution must -

(a) obtain approval from the directors, partners or senior management of

that accountable institution before establishing a business relationship

with such new client, or in case of an existing client, obtain approval

from the directors, partners or senior management of that accountable

institution to continue the business relationship with the client; and

(b) take measures as prescribed by the Centre to identify, as far as reasonably

possible, the source of wealth, funds and any other assets of the client.

(3) An accountable institution which contravenes or fails to comply with

subsections (1) and (2) commits an offence and is liable to a fine not exceeding N$100

million or, where the commission of the offence is attributable to a representative of

the accountable institution, to such fine or imprisonment for a period not exceeding 30

years, or to both such fine and such imprisonment.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

On-going and enhanced due diligence

24. (1) An accountable institution must exercise on-going due

diligence in respect of all its business relationships which must, at a minimum, include -

(a) maintaining adequate current and up-to-date information and records

relating to the client and beneficial owner;

(b) monitoring the transactions carried out by the client in order to ensure

that such transactions are consistent with the accountable or reporting

institution’s knowledge of the client, the client’s commercial or personal

activities and risk profile; and

section 23, and correspondent banking relationships are fulfilled.

(2) An accountable institution must -

(a) pay special attention to all complex, unusual large transactions and all

unusual patterns of transactions which have no apparent economic or

visible lawful purpose;

(b) at the direction of the Minister, pay special attention to business

relations and transactions with persons, including legal persons and

trusts, from or in countries that do not or insufficiently apply the

relevant international standards to combat money laundering and the

financing of terrorism;

under paragraphs (a) and (b) and set forth in writing their findings;

(d) keep the findings made in terms of paragraph (c) available for competent

authorities and company auditors for at least five years, or longer if

specifically so requested by a competent authority before the expiration

of the 5 year period;

(e) take such specific measures as may be prescribed from time to time by

the Minister to counter the risks with respect to business relations and

transactions specified under paragraph (b); and

(f) conduct enhanced monitoring and due diligence when -

(i) any doubts arise about the veracity or adequacy of previously

obtained customer identification data; or

(ii) there is a suspicion of money laundering or financing of

terrorism;

so as to prevent money laundering, financing of terrorism or the

commission of any other offence.

(3) An accountable institution which contravenes or fails to comply with

this section, commits an offence and is liable to a fine not exceeding N$100 million or,

5096 Government Gazette 14 December 2012 25

Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

where the commission of the offence is attributable to a representative of the accountable

institution, to such fine or imprisonment for a period not exceeding 30 years, or to both

such fine and such imprisonment.

Identification and account-opening for cross-border correspondent banking

relationships

25. (1) Where applicable, when entering into cross-border

correspondent banking relationship, the employees of an accountable institution must -

(a) identify and verify the identification of respondent institutions with

which it conduct correspondent banking relationships;

(b) collect information on the nature of the respondent institution’s

activities;

institution’s reputation and the nature of supervision to which it is

subject;

(d) obtain approval from the directors, partners or senior management of

that accountable institution before establishing a correspondent banking

relationship;

(e) evaluate the controls implemented by the respondent institution with

respect to anti-money laundering and combating the financing of

terrorism;

(f) establish an agreement on the respective anti-money laundering and

combating the financing of terrorism responsibilities of each party

under the relationship; and

(g) in the case of a payable-through account, ensure that the respondent

institution has verified its customer’s identity, has implemented

mechanisms for on-going monitoring with respect to its clients and is

capable of providing relevant identifying information on request.

(2) An accountable institution which contravenes or fails to comply

with subsection (1), commits an offence and is liable to a fine not exceeding N$100

million or, where the commission of the offence is attributable to a representative of

the accountable institution, to such fine or imprisonment for a period not exceeding 30

years, or to both such fine and such imprisonment.

Records to be kept of business relationships and transactions

26. (1) Whenever an accountable or reporting institution establishes a

business relationship or concludes a transaction with a client, whether the transaction

is a single transaction or concluded in the course of a business relationship which that

accountable or reporting institution has with the client, the accountable or reporting

institution must keep records in the prescribed form and manner of -

(a) the identity of the client;

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(b) if the client is acting on behalf of another person -

(i) the identity of the person on whose behalf the client is acting;

and

(ii) the client’s authority to establish that business relationship

or to conclude that single transaction on behalf of that other

person;

(i) the identity of that other person; and

(ii) that other person’s authority to act on behalf of the client;

(d) the manner in which the identity of a person referred to in paragraph

(a), (b) or (c) was established;

(e) the nature of that business relationship or transaction;

(f) all accounts at that accountable or reporting institution that are involved

in -

(i) transactions concluded in the course of that business

relationship; or

(ii) a single transaction;

(g) in the case of a transaction -

(i) the amount involved; and

(ii) the parties to that transaction;

(h) client or transaction files and business correspondence;

(i) enhanced due diligence findings referred to in section 24 (2)(c) and (d);

(j) copies of all reports filed with the Centre pursuant to sections 32, 33

and 34 and supporting documents;

(k) the name of the person who obtained the information referred to in

paragraph (a) to (g) on behalf of the accountable or reporting institution;

and

(l) any document or copy of a document obtained by the accountable or

reporting institution in order to verify a person’s identity in terms of

sections 21 and 22.

(2) Records kept in terms of subsection (1) may be kept in electronic form.

(3) The records referred to in subsection (1) must include records as may

be determined by the Centre.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(4) An accountable or reporting institution which contravenes or fails to

comply with this section commits an offence and is liable to a fine not exceeding N$100

million or, where the commission of the offence is attributable to a representative of

the accountable or reporting institution, to such fine or imprisonment for a period not

exceeding 30 years, or to both such fine and such imprisonment.

(5) A person who destroys or tampers with any records kept under this

section commits an offence and is liable to a fine not exceeding N$100 million or

to imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.

Period for which record must be kept

27. (1) An accountable or reporting institution must keep the records

referred to in section 26 which relate to -

(a) the establishment of a business relationship, for at least five years from

the date on which the business relationship is terminated; or longer if

specifically so requested by competent authorities before the expiration

of the 5 year period; and

(b) a transaction which is concluded, for at least five years from the date

on which that transaction is concluded, or longer if specifically so

requested by competent authorities before the expiration of the 5 year

period;

any supporting documentation, for at least five years from the date the

report was made, or longer if specifically so requested by competent

authorities before the expiration of the 5 year period.

(2) An accountable or reporting institution must also maintain sufficient

records to enable the reconstruction of any transaction for both clients and non-clients

whether concluded as a single transaction or in the course of a business relationship,

for a period of not less than 5 years from the date the transaction has been completed or

the business relationship has been terminated, or longer if specifically so requested by

competent authorities before the expiration of the 5 year period.

(3) An accountable or reporting institution must maintain all books and

records with respect to their clients and transactions as set forth in section 26 and must

ensure that such records, any supporting documentation and underlying information are

available on a timely basis at the request of any competent authority

(4) An accountable or reporting institution which contravenes or fails to

comply with subsection (1), (2) or (3) commits an offence and is liable to a fine not

exceeding N$100 million or, where the commission of the offence is attributable to a

representative of the accountable or reporting institution, to such fine or imprisonment

for a period not exceeding 30 years, or to both such fine and such imprisonment.

Centralisation of records

28. (1) The duty imposed by section 26 on an accountable or reporting

institution to keep records of the matters specified in that section may, in the case of two

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

or more accountable or reporting institutions belonging to the same group, be centralised,

as prescribed and be deemed to be performed by an accountable or reporting institution

within the same group on behalf of those accountable or reporting institutions, provided

that such accountable or reporting institutions have free and easy access to the records.

(2) A person who destroys or tampers with any records kept under this

section commits an offence and is liable to a fine not exceeding N$100 million or

to imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.

Records may be kept by third parties

29 (1) The duties imposed by section 26 on an accountable or reporting

institution to keep record of the matters specified in that section may be performed

by a third party on behalf of the accountable or reporting institution as long as the

accountable or reporting institution has unrestricted access to the records.

(2) If a third party referred to in subsection (1) fails to properly comply

with the requirements of section 26 on behalf of the accountable or reporting institution

concerned, the accountable or reporting institution is liable for that failure.

(3) If an accountable or reporting institution appoints a third party to

perform the duties imposed on it by section 26, the accountable or reporting institution

must provide the Centre with the prescribed particulars regarding the third party.

(4) A person who destroys or tampers with any records kept under this

section commits an offence and is liable to a fine not exceeding N$100 million or

to imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.

Admissibility of records

30. (1) A record kept in terms of sections 26 and 48, or a certified

extract of that record, or a certified printout of an electronic record of which direct oral

evidence of its contents may be given, is on its mere production in a court admissible as

evidence in a matter before the court.

(2) Any record of an investigation conducted under this Act, any property,

report or document produced or any statement is, notwithstanding any law to the

contrary, admissible as evidence in any proceedings in any court for, or in relation to,

an offence or any other matter under this Act or any other offence under any other law,

regardless whether such proceedings are against the person who was examined, or who

produced the property, record, report or document, or who made the written statement

on oath or affirmation, or against any other person.

Centre has access to records

31. (1) The Centre or an authorised representative of the Centre -

(a) has access during ordinary working hours to any record kept in terms

of this Act, relating to suspicious money laundering or financing of

terrorism activities, by or on behalf of -

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(i) an accountable institution;

(ii) a reporting institution;

(iii) a supervisory body;

(iv) a regulatory body;

(v) a law enforcement agency;

(vi) any other person or institution that holds relevant records or

information, including information on a commercially held

database;

(vii) any office, ministry or agency within the Government; and

(b) may examine, make extracts from or copies of those records.

(2) An accountable or reporting institution, a supervisory or regulatory

body or any other person or institution must without delay give all reasonable assistance

to an authorised representative of the Centre necessary to enable that representative to

exercise the powers mentioned in subsection (1).

(3) An accountable or reporting institution, a supervisory body, regulatory

body, or any other person which contravenes or fails to comply with subsection (2)

commits an offence and is liable to a fine not exceeding N$100 million or, where the

commission of the offence is attributable to a representative of the accountable or

reporting institution, to such fine or imprisonment for a period not exceeding 30 years,

or to both such fine and such imprisonment.

Cash transactions above prescribed limits

32. (1) An accountable and reporting institution must, within the

prescribed period, report to the Centre the prescribed particulars concerning a transaction

concluded with a client if in terms of the transaction an amount of cash in excess of the

prescribed amount -

(a) is paid by the accountable or reporting institution to the client, or to a

person acting on behalf of the client, or to a person on whose behalf the

client is acting; or

(b) is received by the accountable or reporting institution from the client,

or from a person acting on behalf of the client, or from a person on

whose behalf the client is acting.

(2) An accountable or reporting institution which contravenes or fails to

comply with subsection (1) commits an offence and is liable to a fine not exceeding

N$100 million or, where the commission of the offence is attributable to a representative

of the accountable or reporting institution, to such fine or imprisonment for a period not

exceeding 30 years, or to both such fine and such imprisonment.

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Suspicious transactions and suspicious activities

33. (1) A person who -

(a) carries on any business or the business of an accountable or reporting

institution, or is in charge of, or manages a business undertaking, or a

business undertaking of an accountable or reporting institution; or

(b) is a director of, secretary to the board of, employed or contracted by

any business, or the business of an accountable or reporting institution,

and who knows or reasonably ought to have known or suspect that, as a result of a

transaction concluded by it, or a suspicious activity observed by it, it has received or is

about to receive the proceeds of unlawful activities or has been used or is about to be

used in any other way for money laundering or financing of terrorism purposes, must,

within the prescribed period after the suspicion or belief arose, as the case may be,

report to the Centre -

(i) the grounds for the suspicion or belief; and

(ii) the prescribed particulars concerning the transaction or suspicious

activity.

(2) If an accountable or reporting institution or business suspects or

believes there are reasonable grounds to suspect that, as a result of a transaction which

it is asked to conclude or about which enquiries are made, it may receive the proceeds

of unlawful activities or in any other way be used for money laundering or financing of

terrorism purposes should the transaction be concluded, it must, within the prescribed

period after the suspicion or belief arose, report to the Centre -

(a) the grounds for the suspicion or belief, and

(b) the prescribed particulars concerning the transaction.

(3) An accountable or reporting institution or business which made or is

to make a report in terms of this section must not disclose that fact or any information

regarding the contents of that report, to any other person, including the person in respect

of whom the report is or to be made, otherwise than -

(a) within the scope of the powers and duties of the accountable or reporting

institution or business in terms of any legislation;

(b) for the purpose of carrying out this Act;

a judge in chambers; or

(d) in terms of an order of court.

(4) A person who knows or suspects that a report has been or is to be made

in terms of this section must not disclose that knowledge or suspicion or any information

regarding the contents or suspected contents of that report to any other person, including

the person in respect of whom the report is or is to be made otherwise than -

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(a) within the scope of that person’s powers and duties in terms of any

legislation;

(b) for the purpose of carrying out this Act;

a judge in chambers; or

(d) in terms of an order of a court.

(5) An accountable or reporting institution or business which contravenes

or fails to comply with this section commits an offence and is liable to a fine not

exceeding N$100 million or, where the commission of the offence is attributable to a

representative of the accountable or reporting institution, to such fine or imprisonment

for a period not exceeding 30 years, or to both such fine and such imprisonment.

(6) A person who contravenes or fails to comply with this section commits

an offence and is liable to a fine not exceeding N$100 million or to imprisonment for a

period not exceeding 30 years, or to both such fine and such imprisonment.

Electronic transfers of money to, from and within Namibia

34. (1) If an accountable or reporting institution through an electronic

transfer, on behalf or on the instruction of another person -

(a) sends money in excess of a prescribed amount, regardless of the

destination of such funds; or

(b) receives money in excess of a prescribed amount, regardless of the

origin of such funds,

it must, within the prescribed period after the money was received or transferred, report

the transfer, together with the prescribed originator information, to the Centre.

(2) If an accountable or reporting institution undertakes to send an

electronic transfer in excess of a prescribed amount it must, where reasonably possible,

include the prescribed originator information in the electronic message or payment form

accompanying the transfer, or be in a position to request such originator information

from the originator institution.

(3) When an accountable or reporting institution acts as an intermediary in

a chain of electronic transfers, it must transmit all the information it receives with that

electronic transfer, to the recipient institution.

(4) If an accountable or reporting institution referred to in subsection

(2) receives an electronic transfer that does not contain all the prescribed originator

information, it must take the necessary measures to ascertain and verify the missing

information from the ordering institution or the beneficiary, before it honours any of the

instructions contained in the transfer.

(5) If an accountable or reporting institution is not able to obtain the

prescribed originator information, it must file a suspicious transaction report.

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(6) An accountable or reporting institution must treat an electronic transfer

that it undertakes to send, receive or transmit as an intermediary, or receive as the

recipient institution, as a transaction for which it must comply with the record-keeping

requirements of sections 26 and 27.

(7) An accountable or reporting institution which contravenes or fails to

comply with a provision of this section, commits an offence and is liable to a fine not

exceeding N$100 million or, where the commission of the offence is attributable to a

representative of the accountable or reporting institution, to such fine or imprisonment

for a period not exceeding 30 years, or to both such fine and such imprisonment.

Obligations of and reporting by supervisory bodies

35. (1) If a supervisory body suspects that an accountable or reporting

institution has, as a result of a transaction concluded by the institution, knowingly or

unknowingly received or is about to receive the proceeds of unlawful activities or has

in any other way been used for money laundering or financing of terrorism purposes, it

must -

(a) inform the Centre of the knowledge or suspicion outlining: -

(i) the grounds for the knowledge or suspicion; and

(ii) the prescribed particulars concerning the transaction or

suspicion; and

(b) retain the records held by it which relate to that knowledge or suspicion,

for such period as the Centre may reasonably require, but not less than

5 years from date of the report or longer if specifically so requested by

competent authorities before the expiration of the 5 year period.

(2) A supervisory body is responsible for supervising, monitoring

and enforcing compliance with this Act or any regulation, order, circular, notice,

determination or directive issued in terms of this Act, in respect of all accountable or

reporting institutions supervised by it.

(3) Any accountable or reporting institution that is not supervised by a

supervisory body is deemed to be supervised by the Centre for purposes of this Act.

(4) The responsibility referred to in subsection (2) forms part of the

legislative mandate of all supervisory bodies and constitutes a core function of

supervisory bodies which function must be executed using a risk-based approach.

(5) Any Act that regulates a supervisory body or authorises that supervisory

body to supervise or regulate any accountable or reporting institution, must be read

as including subsection (2) and a supervisory body may utilise any fees or charges

it is authorised to impose or collect, to defray expenditure incurred in performing its

obligations under this Act or any regulation, order, circular, notice, determination or

directive issued in terms of this Act.

(6) A supervisory body, in meeting its obligation referred to in subsection

(2) may -

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(a) delegate the exercise of any power to any of its members, employees or

any other suitable person;

(b) require an accountable or reporting institution supervised or regulated

by it to report on that institution’s compliance with this Act or any

regulation, order, notice, circular, determination or directive issued in

terms of this Act, in the form, manner and timeframes prescribed by the

Centre, after consultation with the supervisory body;

the supervisory body may issue, or has issued, or grant in accordance

with any Act, to include the following conditions -

(i) compliance with this Act; and

(ii) the continued availability of human, financial, technological

and other resources to ensure compliance with this Act or any

order, notice, circular, determination or directive made in terms

of this Act.

(7) A supervisory body must submit to the Centre, within the prescribed

period and in the prescribed manner, a written report on any supervision and monitoring

activities conducted in respect of an accountable or reporting institution in terms of this

Act or any regulation order, notice, circular, determination or directive made in terms of

this Act.

(8) A supervisory body must register in the prescribed form and manner

particulars of all accountable or reporting institutions, regulated or supervised by it,

with the Centre for purposes of supervising compliance with this Act or any regulation,

order, notice, circular, determination or directive made in terms of this Act.

(9) The Centre and a supervisory body must consult and cooperate with

each other in exercising their powers and the performance of their functions in terms of

this Act.

(10) The Centre may issue an administrative notice , penalising a supervisory

body by imposing an appropriate, prescribed fine without recourse to a Court, if that

body has, without reasonable excuse failed to comply in whole or in part with any

obligations under this Part, or any regulation, order, notice, circular, determination or

directive issued in terms of this Act.

(11) If the Centre is satisfied that a supervisory body has failed without

reasonable excuse to comply in whole or in part with any obligations in this Act it may

apply to the High Court for an order compelling any or all the officers or employees of

that supervisory body to comply with those obligations.

(12) If the High Court is satisfied that a supervisory body has failed without

reasonable excuse to comply in whole or in part with any obligation imposed by this

Act it may issue the order applied for in terms of subsection (11), or make any order it

considers appropriate.

(13) Despite subsections (11) and (12), the Centre may enter into an

enforceable undertaking with any supervisory body that has without reasonable excuse

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failed to comply in whole or in part with any obligations in this Part to implement any

action plan to ensure compliance with its obligations under this Part.

(14) A person who contravenes or who fails to comply with an administrative

notice under subsection (10) or an enforceable undertaking in terms of subsection (13),

commits an offence and is liable to a fine not exceeding N$10 million or to imprisonment

for a period not exceeding 10 years, or to both such fine and such imprisonment and, in

the case of a continuing offence, to a further fine not exceeding N$50 000 for each day

during which the offence continues after conviction.

(15) The relevant supervisory body of an accountable or reporting institution

or such other person as the relevant supervisory body may think fit must -

(a) adopt the necessary measures to prevent or avoid having any person

who is not fit and proper from controlling, or participating, directly

or indirectly, in the directorship, management or operation of an

accountable or reporting institution;

(b) in making a determination in accordance with any Act applicable to it

as to whether a person is fit and proper to hold office in an accountable

or reporting institution, take into account any involvement, whether

directly or indirectly, by that person in any non-compliance with this

Act or any regulation, order, notice, circular, determination or directive

made in terms of this Act, or any involvement in-

(i) any money laundering activity; or

(ii) any terrorist or financing of terrorism related activity.

verify, through regular examinations, that an accountable or reporting

institution adopts and implements compliance measures consistent

with this Act,

(d) issue guidelines to assist accountable and reporting institutions in

detecting suspicious patterns of behaviour in their clients and these

guidelines shall be developed taking in to account modern and secure

techniques of money management and will serve as an educational tool

for accountable and reporting institutions’ personnel; and

(e) co-operate with other enforcement agencies and lend technical

assistance in any investigation, proceedings relating to any unlawful

activity or offence under this Act.

(16) The supervisory body or regulatory body of an accountable or reporting

institution, upon recommendation of the Centre, may revoke or suspend the licence

of the accountable or reporting institution or cause the institution not to carry on such

business -

(a) if the accountable or reporting institution has been convicted of an

offence under this Act; or

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(b) if the accountable or reporting institution consistently failed or refused

to adhere to any or all of its obligations under this Act or any regulation,

order, notice, circular, determination or directive issued in terms of this

Act.

(17) The supervisory body or regulatory body must report promptly to the

Centre any information received from any accountable or reporting institution related to

transactions or activities that could be treated as an offence under this Act.

(18) A supervisory body which contravenes or fails to comply with

subsection (1), (2), (7), (8), (15), (16) or (17) commits an offence and is liable to a fine

not exceeding N$10 million or, where the commission of the offence is attributable to

a representative of the supervisory body, to such fine or imprisonment for a period not

exceeding 10 years, or to both such fine and such imprisonment.

(19) An accountable or reporting institution that contravenes or fails to

comply with subsection (6)(b) commits an offence and is liable to a fine not exceeding

N$10 million or, where the commission of the offence is attributable to a representative

of the accountable or reporting institution, to such fine or to imprisonment for a period

not exceeding 10 years, or to both such fine and such imprisonment.

Declaration of cross border movement of cash and bearer negotiable instruments

amounting to or exceeding amount determined by Centre

36. (1) Every person entering into or departing from Namibia who

is carrying or transporting cash, bearer negotiable instruments, or both, equal to or

exceeding an amount determined by the Centre, must declare such cash or instrument,

to an officer of the Customs and Excise at the port of entry into or departure from

Namibia.

(2) Every person importing into or exporting out of Namibia, through

containerized cargo, cash or bearer negotiable instruments equal to or exceeding

an amount determined by the Centre, must declare such cash or bearer negotiable

instruments to an officer of the Customs and Excise at the port of entry into or departure

from Namibia.

(3) Every person mailing or conveying any post whether by mail, telegram

or courier entering or departing Namibia that contains cash or bearer negotiable

instruments equal to or exceeding an amount determined by the Centre, must declare

such cash or bearer negotiable instruments to a designated officer at the relevant Post

Office or an officer of the Customs and Excise at the port of entry into or departure from

Namibia.

(4) The declaration referred to in subsections (1), (2) or (3) must be made

on a prescribed form and be presented to an officer of the Customs and Excise at that

port of entry into or departure from Namibia, or to a designated officer at the relevant

Post Office.

(5) Once a declaration is made in terms of subsections (1), (2) or (3), an

officer of the Customs and Excise or Post Office to whom the declaration is made,

must issue an acknowledgement as prescribed by the Centre to the person making the

declaration.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(6) Any person that is required to make a declaration in terms of subsections

(1), (2) or (3) of cash or bearer negotiable instruments, or both, and who fails to make

such declaration, or makes a false declaration, commits an offence and is liable to a fine

not exceeding N$100 million or to imprisonment for a period not exceeding 30 years, or

to both such fine and such imprisonment.

(7) Any cash or bearer negotiable instrument that is not declared as

aforesaid, or that is falsely declared, is liable for seizure and forfeiture to the State, in

the form and manner as prescribed.

Powers of officers of Customs and Excise in respect of cash or bearer negotiable

instruments being conveyed in or out of Namibia

37. (1) For the purposes of ascertaining any matter referred to in

section 36 or exercising any powers under section 36, an officer of the Customs and

Excise or Post Office may require any person referred to in section 36(1), (2) or (3) to -

(a) answer questions that the officer of the Customs and Excise or Post

Office may put to that person which are relevant to any issue referred

to in section 36;

(b) make and sign a cash or bearer negotiable instrument declaration form;

negotiable instrument and its intended purpose, in the event of a false

declaration or a failure to make a declaration; and

(d) answer any other question to ensure compliance with section 36.

(2) An officer of the Customs and Excise or Post Office may -

(a) seize and detain cash or bearer negotiable instruments when such officer

reasonably suspects that such cash or bearer negotiable instruments -

(i) are proceeds of crime;

(ii) may be used to commit the offence of money laundering;

(iii) may be used to commit the offence of terrorism or terrorist

financing;

(iv) is connected to terrorist or terrorist financing activities;

(b) seize and detain cash or bearer negotiable instruments when such

officer reasonably suspects -

(i) the person concerned has failed to make a declaration in terms

of subsections 36(1), (2) or (3); or

(ii) the person concerned has made a false declaration.

(3) An officer of the Customs and Excise or Post Office may seize and

detain any cash, bearer negotiable instrument, article, book or document including any

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

container or package, which, in his or her opinion, may afford evidence relating to the

commission of, or an attempt to commit a money laundering or financing of terrorism

offence, or any matter incidental thereto.

(4) An officer of the Customs and Excise may board any ship or aeroplane

within the territory, the territorial sea or the exclusive economic zone of Namibia, or

may stop and board any vehicle entering or leaving Namibia, and may search any such

ship, aeroplane or vehicle or any person found therein or thereon, for undeclared or

falsely declared cash or bearer negotiable instruments.

(5) If any container, cargo, vehicle, cabin, place, safe, or package is locked

and the keys thereof are not produced to the officer of the Customs and Excise or Post

Office on demand, the officer may, for any purpose under this section, open or enter

such container, vehicle, cabin, place, safe, or package in any manner he or she thinks

appropriate.

(6) All officers of the Customs and Excise or Post Office must cooperate

with other law enforcement agencies on any matter concerning investigations of money

laundering activities, financing of terrorist activities or both.

(7) An officer of the Customs and Excise or Post Office may detain and

hand over to the police any person who has committed an offence under this section to

be arrested without a warrant of arrest.

(8) Any cash or bearer negotiable instruments seized and detained by

an officer of the Customs and Excise or Post Office in terms of subsection 2(a) must

be handed over to the Namibian Police for purposes of criminal investigations and

prosecutions.

(9) Any cash or bearer negotiable instruments seized and detained by an

officer of the Customs and Excise or Post Office in terms of subsection 2(b) must be

handed over to the Centre for purposes of forfeiture as envisaged in subsection 36(7).

Making declarations on cash or bearer negotiable instruments available to Centre

38 (1) The Commissioner of Customs and Excise or the Post Master

must within a prescribed period and in the prescribed form and manner make all

declarations made in terms of subsections 36(1), (2) or (3) to an officer of the Customs

and Excise or Post Office, respectively, available to the Centre.

(2) An officer of the Customs and Excise or Post Office who wilfully fails

to electronically register and make information referred to in section 36 available to

the Commissioner of Customs and Excise or the Post Master for onward submission

to the Centre, commits and offence and is liable to a fine not exceeding N$100 million

or to imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.

Obligations of accountable and reporting institutions

39. (1) An accountable institution, on a regular basis, must conduct

money laundering and financing of terrorism activities risk assessments taking into

account the scope and nature of its clients, products and services, as well as the

geographical area from where its clients and business dealings originate.

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(2) Accountable and reporting institutions not supervised or regulated by a

supervisory body or regulatory body must register their prescribed particulars with the

Centre for purposes of supervising compliance with this Act or any regulation, notice,

order, circular, determination or directive issued in terms of this Act.

(3) Accountable and reporting institutions must develop, adopt and

implement a customer acceptance policy, internal rules, programmes, policies,

procedures and controls as prescribed to effectively manage and mitigate risks of money

laundering and financing of terrorism activities.

(4) A customer acceptance policy, internal rules, programmes, policies,

procedures referred to in subsection (3) must be approved by directors, partners, or

senior management of accountable or reporting institution and must be consistent with

national requirements and guidance, and should be able to protect the accountable or

reporting institution’s systems against any money laundering and financing of terrorism

activities taking into account the results of any risk-assessment conducted under

subsection (1).

(5) The programmes in subsection (3) may include -

(a) the establishment of procedures to ensure high standards of integrity of

its employees and a system to evaluate the personal, employment and

financial history of those employees;

(b) on-going employee training programmes, such as “Know Your

Customer” programmes and instructing employees with regard to

responsibilities under this Act; and

programmes;

(d) policies and procedures to prevent the misuse of technological

developments including those related to electronic means of storing

and transferring funds or value; and

(e) policies and procedures to address the specific risks associated with

non-face-to-clients or transactions for purposes of establishing identity

and on-going customer due diligence.

(6) Accountable and reporting institutions must designate compliance

officers at management level, where applicable, who will be in charge of the application

of the internal programmes and procedures, including proper maintenance of records

and reporting of suspicious transactions.

(7) Accountable and reporting institutions must implement compliance

programmes under subsection (3) at its branches and subsidiaries within or outside

Namibia.

(8) An accountable institution must develop audit functions to evaluate

any policies, procedures and controls developed under this section to test compliance

with the measures taken by the accountable institution to comply with this Act and the

effectiveness of those measures.

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Act No. 13, 2012 FINANCIAL INTELLIGENCE ACT, 2012

(9) The internal rules referred to in subsection (3) must include -

(a) the establishment and verification of the identity of persons whom the

institution must identify in terms of Part 4 of this Act;

(b) the information of which record must be kept in terms of Part 4 of this

Act;

(d) the training of employees of the institution to recognise and handle

suspected money laundering and financing of terrorism activities.

(10) Internal rules made under this section must comply with the prescribed

requirements and be made available to each employee of an accountable or reporting

institution.

(11) The Centre may determine the type and extent of measures accountable

and reporting institutions shall undertake with respect to each of the requirements in this

section, having regard to the risk of money laundering or financing of terrorism and the

size of the business or profession.

(12) Any accountable or reporting institution that contravenes or fails to

comply with this section commits an offence and is liable to a fine not exceeding N$100

million or, where the commission of the offence is attributable to a representative of

the accountable or reporting institution, to such fine or imprisonment for a period not

exceeding 30 years, or to both such fine and such imprisonment.

Reporting procedures

40. (1) A report required to be made in terms of this Act must be made

in the prescribed manner.

(2) The Centre, or an investigating authority acting with the permission of

the Centre or under the authority of a competent authority may request an accountable

institution, reporting institution, supervisory body , regulatory body or person that has

made a report in terms of this Act to furnish the Centre or that investigating authority

without delay with any additional information concerning the report which the Centre

or the investigating authority may reasonably require and which that accountable

institution, reporting institution, supervisory body, regulatory body or person has.

(3) An accountable or reporting institution, supervisory body or regulatory

body which fails to comply with a request made under subsection (2) commits an

offence and is liable to a fine not exceeding N$100 million or, where the commission of

the offence is attributable to a representative of the accountable or reporting institution,

supervisory or regulatory body, to such fine or imprisonment for a period not exceeding

30 years, or to both such fine and such imprisonment.

(4) A person who fails to comply with a request made under subsection (2)

commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment

for a period not exceeding 30 years, or to both such fine and such imprisonment.

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Continuation of suspicious transactions

41. An accountable or reporting institution that has made a report to the

Centre in terms of section 32, 33 or 34 concerning a transaction, may continue with

and carry out the transaction unless the Centre directs the accountable or reporting

institution in terms of section 42 not to proceed with the transaction.

Intervention by Centre

42. (1) If the Centre, after consulting an accountable or reporting

institution, has reasonable grounds to suspect that a transaction or a proposed transaction

may involve the proceeds of unlawful activities or may constitute money laundering

or the financing of terrorism; it may direct the accountable or reporting institution in

writing not to proceed with the carrying out of that transaction or any other transaction

in respect of the funds affected by that transaction or proposed transaction for a period

determined by the Centre, which may not be more than 12 working days, in order to

allow the Centre -

(a) to make the necessary inquiries concerning the transaction; and

(b) if the Centre thinks it appropriate, to inform and advise an investigating

authority or the Prosecutor-General.

(2) An accountable or reporting institution which fails to comply with

a direction made under subsection (1) commits an offence and is liable to a fine not

exceeding N$100 million or, where the commission of the offence is attributable to a

representative of the accountable or reporting institution, to such fine or imprisonment

for a period not exceeding 30 years, or to both such fine and such imprisonment.

Monitoring orders

43. (1) A judge in chambers may, on written application by the Centre,

order an accountable or reporting institution to report to the Centre, on such terms and

in such confidential manner as may be specified in the order, all transactions concluded

by a specific person with the Accountable or reporting institution or all transactions

conducted in respect of a specific account or facility at the accountable or reporting

institution, if there are reasonable grounds to suspect that -

(a) that person is using the accountable or reporting institution for money

laundering or financing of terrorism purposes;

(b) that account or other facility is being used for the purposes of money

laundering or financing of terrorism;

(2) An order in terms of subsection (1) lapses after three months unless

extended in terms of subsection (3).

(3) A judge in chambers may extend an order issued in terms of subsection

(1) for further periods not exceeding three months at a time if -

(a) the reasonable grounds for the suspicion on which the order is based

still exist; and

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(b) the judge is satisfied that the interest of justice is best served by

investigating the suspicion in the manner provided for in this section.

(4) An application referred to in subsection (1) must be heard and an

order must be issued without notice to or hearing the person or persons involved in the

suspected money laundering or financing of terrorism activities.

(5) An accountable or reporting institution which fails to comply with an

order made under subsection (1) commits an offence and is liable to a fine not exceeding

N$100 million or, where the commission of the offence is attributable to a representative

of the accountable or reporting institution, to such fine or imprisonment for a period not

exceeding 30 years, or to both such fine and such imprisonment.

Reporting duty not affected by confidentiality rules

44. (1) No duty of secrecy or confidentiality or any other restriction

on the disclosure of information, whether imposed by legislation or arising from the

common law or agreement, affects compliance with a provision of this Act.

(2) Subsection (1) does not apply if the obligation of secrecy or other

restriction is based on the common law right to professional privilege between a legal

practitioner and his or her client in respect of information communicated to the legal

practitioner so as to enable him or her to -

(a) provide advice to the client;

(b) defend the client; or

under any law in respect of which -

(i) the client is charged;

(ii) the client has been arrested or summoned to appear in court; or

(iii) an investigation with a view to institute criminal proceedings is

being conducted against the client.

Protection of persons making reports

45. (1) No action, whether criminal or civil, lies against an accountable

or reporting institution, supervisory body or person complying in good faith with a

provision of this Part, including any director, employee or other person acting on behalf

of that accountable or reporting institution, supervisory or regulatory body or person.

(2) A person who has made, initiated or contributed to a report in terms of

this Part is competent, but not compellable, to give evidence in criminal proceedings

arising from the report.

(3) No evidence concerning the identity of a person who made a report

in terms of this Part or the contents of that report, or the grounds for that report, is

admissible as evidence in criminal proceedings unless that person testifies at those

proceedings.

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(4) No evidence concerning the identity of a person who initiated or

contributed to a report in terms of this Part is admissible as evidence in criminal

proceedings unless that person testifies at those proceedings.

Tipping off

46. A person who -

(a) knows or has reason to suspect that an authorised officer is acting, or is

proposing to act, in connection with an investigation which is being, or

is about to be, conducted under or for the purposes of this Act and who

discloses to any other person information or any other matter which is

likely to prejudice that investigation or proposed investigation; or

(b) knows or has reason to suspect that a disclosure has been made to an

authorised officer under this Act and discloses to any other person

information or any other matter which is likely to prejudice any

investigation which might be concluded following the disclosure,

commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment

for a term not exceeding 30 years, or to both such fine and such imprisonment.

Admissibility as evidence of reports made to Centre

47. A certificate issued by an official of the Centre that information specified

in the certificate was reported to the Centre in terms of this Part, is, subject to section

45(3) and (4), on its mere production in a court admissible as evidence in a matter before

that court.

Access to information held by Centre

48. (1) If the Centre, on the basis of its analysis and assessment under

section 9 has reasonable grounds to suspect that information would be relevant to

the national security or economic stability of Namibia, the Centre must disclose that

information to an investigating authority inside Namibia, relevant Supervisory Bodies,

relevant regulators and to the Namibia Central Intelligence Service.

(2) The Centre must record in writing the reasons for all decisions to

disclose information made under subsection (1).

(3) For the purposes of subsection (1), “information”, includes in respect

of a financial transaction or an importation or exportation of currency or monetary

instruments -

(a) the name of the client or of the importer or exporter, or any person or

entity acting on their behalf;

(b) the name and address of the place of business where the transaction

occurred or the address of the port of entry into Namibia where the

importation or exportation occurred and the date when the transaction,

importation or exportation occurred;

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in the case of a transaction, if no currency or monetary instruments are

involved, the value of the transaction or the value of the funds that are

the subject of the transaction;

(d) in the case of a transaction, the transaction number and the account

number, if any; and

(e) any other similar identifying information that may be prescribed for the

purposes of this section.

(4) The Centre may, spontaneously or upon request disclose any information

to an institution or agency in a foreign state that has powers and duties similar to those

of the Centre under this Act on such terms and conditions as are set out in an agreement,

between the Centre and that foreign agency regarding the exchange of that information.

(5) Without limiting the generality of subsection (4), an agreement entered

into under that subsection may -

(a) restrict the use of information to purposes relevant to investigating

or prosecuting an unlawful activity, money laundering, financing of

terrorism, or an offence that is substantially similar to such offences;

and

(b) stipulate that the information be treated in a confidential manner and

not be further disclosed without the express consent of the Centre.

(6) The Centre may in writing authorise a competent authority to have

access to such information as the Centre may specify for the purposes of performing the

relevant authority’s functions.

(7) The Centre may, in writing, authorise the Prosecutor-General or his or

her designated officer to have access to such information as the Centre may specify for

the purpose of performing his or her duties or dealing with a foreign state’s request to

mutual assistance in criminal matters.

(8) Despite anything to the contrary in subsection (4) the Centre may,

spontaneously or upon request, disclose any information to an institution or agency

in a foreign state that has the powers and duties to those of the Centre under this Act if

the Centre is satisfied that that corresponding institution has given appropriate written

undertakings -

(a) for protecting the confidentiality of any information communicated to

it; and

(b) for controlling the use that will be made of the information, including

an undertaking that it will not be used as evidence in any proceedings.

(9) The Centre may make inquiries on behalf of a foreign agencies agency

where the inquiry may be relevant to the foreign agencies agency’s analysis of a

matter involving suspected proceeds of crime, money laundering, terrorist property or

suspected financing of terrorism.

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(10) In making inquiries as provided for in subsection (9), the Centre may -

(a) search its own databases, including information related to reports

of suspicious transactions and suspicious activities, requests for

information and other databases to which the Centre has direct or

indirect access, including law enforcement databases, public databases,

administrative databases and commercial databases;

(b) obtain from accountable institutions or reporting institutions, or from

any other person holding records or information on behalf of such

accountable or reporting institutions, information that is relevant in

connection with such request;

connection with such request ; and

(d) take any other action in support of the request of the foreign agencies

that is consistent with the authority of the Centre.

(11) A person who obtains information from the Centre must use that

information only within the scope of that person’s powers and duties and for the purposes

authorised by this Act.

(12) The Centre may make available any information obtained by it, or to

which it has access, to any ministry, office or agency within Government, a supervisory

body, a regulator, a self-regulating association or organisation or accountable and

reporting institutions that is affected by or has a legitimate interest in that information.

(13) A person who uses information obtained from the Centre otherwise

than in accordance with this section commits an offence and is liable on conviction to

a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30

years, or to both such fine and imprisonment.

Protection of confidential information

49. (1) A person may not disclose confidential information held by or

obtained from the Centre except -

(a) within the scope of that person’s powers and duties in terms of any

legislation;

(b) for the purpose of carrying out this Act;

(d) for the purpose of legal proceedings, including any proceedings before

a judge in chambers; or

(e) in terms of an order of a court.

(2) A person who has obtained information from the Centre under this Act

may not, when he or she is no longer authorised to keep the information under this

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Act, make a record of the information, disclose or communicate the information in any

circumstances.

(3) A person who contravenes this section commits an offence and is liable

to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30

years, or to both such fine and such imprisonment.

Protection of informers and information

50. (1) Where a person discloses to the Centre information in terms of

section 33, that any proceeds of unlawful activities is used in connection with or derived

from money laundering, or terrorist financing or any matter on which that information

is based -

(a) if he or she does any act in contravention of the provisions of this Act

and the disclosure relates to the arrangement concerned he or she does

not commit an offence if the disclosure is made -

(i) before he or she does the act concerned, being an act done

with the consent of the Centre ; or

(ii) after he or she does the act, but the disclosure is made on his

or her initiative and as soon as it is reasonable for him or her

to make it;

(b) despite any other written law or the common law the disclosure shall not

be treated as a breach of any restriction on the disclosure of information

imposed by any law, contract or rules of professional conduct; and

(i) the disclosure; or

(ii) any act done or committed to be done in relation to the property

in consequence of the disclosure

(2) Where any information relating to an offence under this Act is received

by an authorized officer the information and identity of the person giving the information

must be confidential between the authorized officer and that person and everything

contained in such information, the identity of the person who gave the information and

all other circumstances relating to the information, including the place where it was

given, may not be disclosed except for the purposes of assisting the Centre to carry out

its functions as stated under this Act.

(3) A person who obstructs, hinders or threatens another person in the

performance of their duties in terms of this Act or any regulation, order, notice, circular,

determination or directive issued in terms of this Act commits an offence and is liable

to a fine not exceeding N$100 million or to imprisonment for a period not exceeding 30

years, or to both such fine and such imprisonment.

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PART 5

COMPLIANCE AND ENFORCEMENT OF ACT

Exhausting of other measures before penalties

51. (1) For purposes of sections 54 and 55, the Centre must perform its

functions and exercise its powers after consultation with the relevant supervisory body

of an accountable or reporting institution.

(2) Despite the penalties provided for in terms of subsections 21(5), 22(6),

23(3), 24(3), 25(8), 26(4), 27(3), 31(3), 32(2), 33(5), 34(7), 35(12), 39(10), 40(3) and

43(5), the Centre or a supervisory body may, if the circumstances of the non-compliance

so justifies, first exhaust measures provided for in terms of sections 54, 55, 56 and 60.

Appointment of inspectors

52. (1) The Director or the head of a supervisory, as the case may be,

may appoint any person in the service of the Centre or supervisory body or any other

suitable person as an inspector for the purposes of determining compliance with this Act

or any regulation, notice, order, circular, determination or directive issued in terms of

this Act.

(2) The Director or the head of a supervisory may determine the

remuneration to be paid to a person who is appointed in terms of subsection (1) that is

not in the full-time service of the Centre or supervisory body.

(3) The Director or the head of a supervisory body must issue an inspector

appointed in subsection (1) with a certificate of appointment signed by the Director or

the head of the supervisory body.

(4) A certificate of appointment issued under subsection 3 must have -

(a) the full name of the person so appointed;

(b) his or her identity number;

(d) his or her photograph;

(e) a description of the capacity in which he or she is appointed; and

(f) the extent of his or her powers to inspect.

(5) Where the head of a supervisory body is authorised by any other Act to

appoint inspectors, he or she may extend the appointment and functions of inspectors

under that Act to include the undertaking of inspections under this Act.

(6) In undertaking inspections under this Act, an inspector whose

appointment or functions have been extended under subsection (5), may, in addition to

the functions imposed upon such inspector under the Act contemplated in subsection

(5), perform any of the functions imposed in terms of this Act.

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(7) Any extended appointment contemplated in subsection (5) must be

reflected in any certificate or appointment document issued by the head of the supervisory

body to an inspector under the Act contemplated in that subsection.

(8) When an inspector undertakes an inspection in terms of this Act, the

inspector must -

(a) be in possession of a certificate of appointment; and

(b) on request, show that certificate to any person who is -

(i) directly affected by the performance of the functions of the

inspector; or

(ii) is in charge of any premises to be inspected.

Inspections

53. (1) For the purposes of determining compliance with this Act or

any regulation, notice, order, circular, determination or directive issued in terms of this

Act, an inspector may at any time and on notice, enter and inspect any premises at which

the Centre the supervisory body or regulatory body reasonably believes the business of

an accountable institution, reporting institution or other person to whom the provisions

of this Act apply, is conducted.

(2) An inspector, in conducting an inspection, may -

(a) in writing direct a person to appear for questioning before the inspector

on a date, time and place determined by the inspector;

(b) order any person who has or had any document in his or her or its

possession or under his or 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;

open any strong room, 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 on that computer

system; and

(ii) reproduce any document from data stored on that computer

system;

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(e) examine or make extracts from or copy any document in the possession

of an accountable institution, reporting institution or person and 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 regulation, order, determination or directive issued in terms of this

Act.

(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) 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, accept-

(a) for the purpose of enforcing compliance with this Act or any regulation,

order, determination or directive issued in terms of this Act;

(b) when required to do so by a court order ; or

interest to release such information.

(5) A person who -

(a) obstructs, hinders or threatens an inspector;

(b) who fails to appear for questioning;

(d) who fails to comply with a reasonable request or order by an inspector

in the performance of his or her duties or the exercise of his or her

powers in terms of this Act,

commits an offence and is liable to a fine not exceeding N$10 million or to imprisonment

for a period not exceeding 10 years, or to both such fine and such imprisonment.

Directives

54. (1) The Centre, after consultation with the relevant supervisory

body may by notice in the Gazette issue a directive to all institutions, or any category

of institutions, or other category of persons to whom this Act applies, regarding the

application of this Act.

(2) The Centre or a supervisory body may in writing, over and above any

directive contemplated in subsection (1), issue a directive to any accountable institution,

category of accountable institutions, reporting institution, category of reporting

institutions or other person to whom this Act applies , to -

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(a) provide the Centre or that supervisory body, as the case may be -

(i) with the information, reports or statistical returns specified

in the directive, at the time or at the intervals specified in the

directive; or

(ii) with any document in its possession or custody or under its

control, within the period specified in the directive;

(b) cease or refrain from engaging in any act, omission or conduct in

contravention of this Act;

(d) perform acts necessary to meet obligations imposed by this Act.

(3) The Centre or supervisory body may examine a document submitted to

it in terms of subsection (2)(a)(ii) or make a copy thereof or part hereof.

(4) The costs incurred in complying with a directive must be borne by the

accountable institution, reporting institution or person concerned.

(5) An accountable institution or a reporting institution or person that fails

to comply with a directive issued in terms of this section commits an offence and is

liable to a fine not exceeding N$10 million or, where the commission of the offence is

attributable to a representative of the accountable or reporting institution, to such fine

or imprisonment for a period not exceeding 10 years, or to both such fine and such

imprisonment.

Enforceable undertakings and enforcement

55. (1) The Director, after consultation with any relevant supervisory

body, may accept any of the following undertakings from a person authorised to act on

behalf of either an accountable or reporting institution -

(a) a written undertaking that the accountable or reporting institution

will, in order to comply with this Act, its regulations, orders, notices,

circulars, determinations or directives made in terms of this Acts, take

specified action;

(b) a written undertaking that the accountable or reporting institution will,

in order to comply with this Act, or any regulations, orders, notices,

circulars, determinations or directives issued in terms of this Act,

refrain from taking specified action;

take specified action directed towards ensuring that the accountable or

reporting institution does not contravene this Act, or any regulations,

order, notice, circular, determination or directive issued in terms of this

Act , or that it is unlikely for the accountable or reporting institution

to contravene this Act, or any regulations, order, notice, circular,

determination or directive issued in terms of this Act, in the future.

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(2) The person may withdraw or vary the undertaking only with the consent

of the Director.

(3) The Director may, after consultation with any relevant supervisory

body by written notice given to the person, cancel the undertaking.

(4) The Director may publish a copy of the undertaking or make available

to any interested person a copy of the undertaking.

(5) The Director, before making available such undertaking, must delete

information that the Director is satisfied is-

(a) confidential information with commercial value; or

(b) information that may not be released as it is against the public interest

to do so; or

(6) If the Director has reason to believe that any person who has given an

undertaking in terms of this section has breached such undertaking, the Director may

apply to the High Court for an order in terms of subsection (7).

(7) If the High Court is satisfied that the person has breached the

undertaking, the Court may make -

(a) an order directing the person to comply with the undertaking;

(b) an order directing the person to pay to the Fund, an amount up to the

amount of any financial benefit that the person has obtained directly or

indirectly and that is reasonably attributable to the breach;

Administrative sanctions

56. (1) The Centre or a supervisory body may impose an administrative

sanction referred to in subsection (3) on any accountable institution, reporting institution

or other person to whom this Act applies when satisfied on available facts and information

that the institution or person -

(a) has failed to comply with a provision of this Act or any regulation,

order, determination or directive issued in terms of this Act;

(b) has failed to comply with a condition of a licence, registration, approval

or authorisation issued or amended in accordance with this Act or any

other law; or

or (2).

(2) In determining an appropriate administrative sanction, the Centre or the

supervisory body must consider the following factors -

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(a) the nature, duration, seriousness and extent of the relevant non-

compliance;

(b) whether the institution or person has previously failed to comply with

any law;

recurrence of the non-compliance;

(d) any steps taken or to be taken against the institution or person by -

(i) another supervisory body; or

(ii) a voluntary association of which the institution or person is a

member; and

(e) any other relevant factor, including mitigating factors.

(3) The Centre or a supervisory body after consultation with each other,

and where applicable, after consultation with relevant regulatory body, may impose any

one or more of the following administrative sanctions -

(a) a caution not to repeat the conduct which led to the non-compliance

referred to in subsection (1);

(b) a reprimand;

(d) the restriction or suspension of certain identified business activities;

(e) suspension of licence to carry on business activities; or

(f) a financial penalty, not exceeding N$10 million, as determined by the

Centre, after consultation with the relevant supervisory or regulatory

bodies.

(4) The Centre or supervisory body may -

(a) in addition to the imposition of an administrative sanction, make

recommendations to the relevant institution or person in respect of

compliance with this Act or any regulation, order, determination or

directive issued in terms of this Act;

(b) direct that a financial penalty must be paid by a natural person(s) for

whose actions the relevant institution is accountable in law, if that

person or persons was or were personally responsible for the non-

compliance;

Centre or the supervisory body considers appropriate for a period not

exceeding five years.

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(5) Before imposing an administrative sanction, the Centre or the

supervisory body must give the institution or person reasonable notice in writing -

(a) of the nature of the alleged non-compliance;

(b) of the intention to impose an administrative sanction;

and

(d) advise that the institution or person may, in writing, within a period

specified in the notice, make representations as to why the administrative

sanction should not be imposed.

(6) After considering any representations and the factors referred to in

subsection (2), the Centre or the supervisory body, subject to subsection (8), may impose

an administrative sanction the Centre or supervisory body considers appropriate.

(7) Upon imposing the administrative sanction the Centre or supervisory

body must, in writing, notify the institution or person of -

(a) the decision and the reasons therefor; and

(b) the right to appeal against the decision in accordance with section 58.

(8) The Centre must, prior to taking a decision contemplated in subsection

(6), consult the relevant regulator, where applicable.

(9) Any financial penalty imposed must be paid into the bank account of

the Fund, within the period and in the manner as may be specified in the relevant notice.

(10) If the institution or person fails to pay the financial penalty within

the specified period and an appeal has not been lodged within the required period,

the Centre or the supervisory body may forthwith file with the clerk or registrar of a

competent court a certified copy of the notice contemplated in subsection (7) and the

notice thereupon has the effect of a civil judgment lawfully given in that court in favour

of the Centre or supervisory body.

(11) An administrative sanction contemplated in this section may not be

imposed if the respondent has been charged with a criminal offence in respect of the

same set of facts.

(12) If a court assesses the penalty to be imposed on a person convicted

of an offence in terms of this Act, the court may take into account any administrative

sanction imposed under this section in respect of the same set of facts.

(13) An administrative sanction imposed in terms of this Act does not

constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure

Act, 1977 (Act No. 51 of 1977).

(14) Unless the Director or the head of a supervisory body is of the opinion

that there are exceptional circumstances present that justify the preservation of the

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confidentiality of any decision, the Director or the head of the supervisory body must

make public the decision and the nature of any sanction imposed if -

(a) an institution or person does not appeal against a decision of the Centre

or supervisory body within the required period; or

(b) the appeal board confirms the decision of the Centre or supervisory

body.

Appeal board

57. (1) Upon receipt of a notice of appeal by an institution or person

made under section 58 against the decision of the Centre or a supervisory body, the

Minister, on recommendation of the Council, must appoint an appeal board to hear and

decide the appeal.

(2) The Appeal board consists of -

(a) one person who has a qualification in law and with at least 10 years’

experience, who is the chairperson; and

(b) two other persons who have experience and extensive knowledge of

financial institutions or financial services provision or financial services

regulation.

(3) The Minister may prescribe additional qualifications, terms and

conditions and other requirements for appointment as members of the appeal board.

(4) If before or during the consideration of any appeal it transpires that any

member of the appeal board has any direct or indirect personal interest in the outcome

of that appeal, the member must declare his or her interest and recuse himself or herself

and must be replaced by another person.

(5) A member of the appeal board may be paid such remuneration and

allowances as the Minister may determine.

(6) The Centre is responsible for the expenditure of and administrative

support for the appeal board.

Appeals

58. (1) Any institution or person may appeal to the appeal board

against a decision of the Centre or a supervisory body made in terms of this Act.

(2) An appeal must be lodged within 30 days of the delivery of the decision

of the Centre or a supervisory body, in the manner, and on payment of the fees prescribed

by the Minister.

(3) An appeal under subsection (1) takes place on the date, at the place and

time determined by the appeal board.

(4) An appeal is decided on the affidavits and supporting documents

presented to the appeal board by the parties to the appeal.

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(5) Despite the provisions of subsection (4) the appeal board may -

(a) summon any person who, in its opinion, may be able to give information

for the purposes of deciding the appeal or who it believes has in his,

her or its possession, custody or control any document which has any

bearing upon the decision under appeal, to appear before it on a date,

time and place specified in the summons, to be questioned or to produce

any relevant document and retain for examination any document so

produced;

(b) administer an oath to or accept an affirmation from any person called as

a witness at an appeal; and

interrogate such person and require such person to produce any

document in his, her or its possession, custody or control.

(6) The chairperson of the appeal board may determine any other procedural

matters relating to an appeal.

(7) An applicant or respondent to an appeal is entitled to be represented at

an appeal by a legal practitioner or any person of his or her choice.

(8) The appeal board may -

(a) confirm, set aside or vary a decision of the Centre or supervisory body;

(b) refer a matter back for consideration or reconsideration by the Centre

or the supervisory body concerned in accordance with the directions of

the appeal board.

(9) The decision of a majority of the members of the appeal board

constitutes the decision of that Board.

(10) The decision of the appeal board must be in writing, and a copy thereof

must be made available to the appellant, the Centre and the supervisory body.

(11) If the appeal board sets aside any decision of the Centre or supervisory

body, the fees contemplated in subsection (2) paid by the appellant in respect of the

appeal in question must be refunded to the appellant.

(12) If the appeal board varies any such decision, it may direct that the whole

or any part of such fees be refunded to the appellant.

(13) Subject to subsection (14), a decision of the appeal board may be taken

on appeal to the High Court as if it were a decision of a magistrate in a civil matter.

(14) The launching of appeal proceedings in terms of subsection (13) does

not suspend the operation or execution of a decision, unless the Centre or supervisory

body directs otherwise.

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Referral of suspected offences to competent authorities or Prosecutor-General or

other public bodies

59. Despite sections 54, 55 and 56, if the Centre in the performance of its

functions has reasonable grounds to suspect that an accountable or reporting institution,

or any other person who is subject to this Act, has contravened or failed to comply

with any provision of this Act or any regulation, order, rule, circular, notice, directive,

determination, undertaking or guideline applicable to that accountable or reporting

institution or person, it may, if it considers it appropriate to do so, refer the matter to a

relevant competent authority, together with any recommendation the Centre considers

appropriate.

Application to court

60. (1) The Centre or any supervisory body, after consultation with

each other, may institute proceedings in the High Court against any accountable

institution, reporting institution or person to whom this Act applies, to -

(a) discharge any obligation imposed by the Centre or supervisory body in

terms of this Act;

(b) compel the institution or person to comply with any provision of this

Act;

(d) compel the institution or person to comply with a directive issued by

the Centre or supervisory body under this Act; or

(e) obtain a declaratory order against the institution or person on any point

of law relating to any provision of this Act or any regulation, order,

notice, circular, determination or directive made in terms of this Act.

(2) If the Centre or a supervisory body has reason to believe that an

institution or person is not complying with this Act or any regulation, order, notice,

circular, determination or directive made in terms of this Act, it may, if it appears that

prejudice has occurred or might occur as a result of such non-compliance, apply to a

court having jurisdiction for -

(a) an order restraining the institution or person from continuing business

pending an application to court by the Centre or supervisory body as

contemplated in subsection (1); or

(b) any other order the Court may think appropriate.

(3) If an accountable or reporting institution or person, to whom this Act

applies, fails to comply with an order of court as contemplated in subsection (1), the

Centre or supervisory body may, after consultation with each other, refer the matter for

investigation or prosecution as contemplated in section 59.

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Powers of authorised officers

61. (1) Where an authorised officer is satisfied, or has reason to

suspect, that a person has committed an offence under this Act or the Prevention of

Organized Crime Act, he or she may, without a search warrant -

(a) enter any premises belonging to or in the possession or control of the

person or his or her employee, and in the case of a body corporate, its

director or manager;

(b) search the premises for any property, electronic information and

devices, record, report or document;

document so seized and detained;

(d) seize, take possession of, and detain for such duration as he or she

thinks necessary, any property, electronic information and devices,

record, report or document produced before him or her in the course of

the investigation of or found on the person who is being searched by

him or her.

(2) An authorized officer in the course of his or her investigation or search

must -

(a) prepare and sign a list of every property, electronic information and

devices, record, report or document seized; and

(b) state in the list the location in which, or the person on whom, the

property, record, report or document is found.

(3) When conducting his or her duties in terms of this section an authorised

officer may call on any other authorised officer or competent authority to assist him or

her.

(4) Any person who -

(a) refuses any authorized officer access to any premises, or fails to submit

to the search of his or her person;

(b) assaults, obstructs, hinders or delays an authorized officer in effecting

any entrance which he or she is entitled to effect;

the execution of his or her duties under this Act;

(d) refuses to give to an authorized officer any property, document or

information which may reasonably be required of him or her and which

he has in his power to give;

(e) fails to produce to, or conceal or attempt to conceal from, an authorised

officer, any property, record, report or document, which the authorized

officer requires;

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(f) rescues or attempts to rescue anything which has been seized;

(g) furnishes to an authorised officer as true any information which he or

she knows or has reason to believe is false; or

(h) before or after any search or seizure, breaks or otherwise destroys

anything to prevent its seizure, or the securing of the property, record,

report or document,

commits an offence and is liable to a fine not exceeding N$10 million or to imprisonment

for a term not exceeding 10 years, or to both such fine and such imprisonment, and in

a case of a continuing offence, to a further fine not exceeding N$50 000 for each day

during which the offence continues after conviction.

(5) An authorized officer may, by a notice in writing require any person

to deliver to him or her any property, record, report or document which he or she has

reason to suspect has been used in the commission of an offence under this Act or is

able to assist in the investigation of an offence under this Act that is in the possession

or custody of, or under the control of, that person or within the power of that person to

furnish.

Release of property, record, report or document seized

62. (1) An authorized officer, unless otherwise ordered by a court,

must -

(a) at the close of an investigation or any proceedings arising from the

investigation; or

(b) with the prior written consent of the Centre or investigating authority,

at any time before the close of an investigation,

release any property, record, report or document seized, detained or removed by him

or her or any other authorized officer, to such person as he or she determines to be

lawfully entitled to the property, record, or document if he or she is satisfied that it is not

required for the purpose of any prosecution, freezing or forfeiture of proceeds of crime

or property of corresponding value under the Prevention of Organized Crime Act, 2004,

or proceedings under this Act, or for the purpose of any prosecution under any other law.

(2) An authorised officer effecting the release under subsection (1) must

record in writing the circumstances of and the reason for such release.

(3) Where the authorized officer is unable to determine the person who

is lawfully entitled to the property, record, report or document or where there is more

than one claimant to the property, record, report or document, or where the authorised

officer is unable to locate the person under subsection (1) who is lawfully entitled to

the property, record or document, the authorised officer must report the matter to a

magistrate who must then deal with the property, record, report or document in terms of

the relevant law dealing with such matters.

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PART 6

OFFENCES AND PENALTIES

Offences in general

63. A person who -

(a) knowing or suspecting information is held by the Centre directly

or indirectly brings, otherwise than in the course of discharging

an obligation under this Act, that information or the fact that that

information is held to the attention of another person;

(b) destroys or in any other way tampers with information kept by the

Centre for the purposes of this Act;

directly or indirectly brings information which is likely to prejudice an

investigation resulting from that disclosure to the attention of another

person;

(d) unduly influences, obstructs, hinders, interferes with or threatens

or attempts to unduly influence, obstruct, hinders, interferes with or

threaten an official or representative of the Centre in the performance

of their duties or the exercise of their powers in terms of this Act;

(e) with intent to defraud, in respect of a document to be produced or

submitted under any provision of this Act, makes or causes to be made

a false entry or omits to make, or causes to be omitted any entry;

(f) fails to comply with the provisions of any regulation, guideline, circular,

notice, directive, determination or undertaking issued in terms of this

Act,

commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment

for a period not exceeding 30 years, or to both such fine and such imprisonment.

Jurisdiction of magistrates’ courts in respect of offences

64. (1) Despite anything to the contrary in any other law contained, a

magistrate’s court has jurisdiction to impose any penalty provided for in this Act, even

though that penalty may, either alone or together with any additional penalty imposed

by that court, exceed the punitive jurisdiction of that court.

(2) Where an act, course of conduct or omission which constitutes an

offence under this Act is or was -

(a) done by a national of Namibia within Namibia or elsewhere;

(b) done by any person on a vehicle, ship or other seafaring vessel or aircraft

traveling through Namibia, putting into port in Namibia or landing on

a landing strip or airport in Namibia; or

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or omissions forming part of the offence are done or to be done in

Namibia;

(d) done by any person outside Namibia and the effects of the offence are

felt in Namibia,

the person concerned may, regardless of anything in any law to the contrary, but

subject to this Act, be tried and punished by any court which has jurisdiction

over criminal matters in Namibia.

Offence committed by person acting in official capacity

65. (1) Where an offence is committed by a legal person, trust or an

association of persons, a person -

(a) who is its director, controller, or partner; or

(b) who is responsible for the management of its affairs,

at the time of the commission of the offence, is deemed to have committed that offence

unless that person proves that the offence was committed without his or her consent or

connivance and that he or she exercised such diligence to prevent the commission of the

offence as he or she ought to have exercised, having regard to the nature of his or her

function in that capacity and to the circumstances.

(2) Despite the fact that a legal person, trust or association of persons has

not been convicted of an offence under subsection (1), an individual may be prosecuted

for that offence.

(3) Subsection (1) does not affect the criminal liability of the legal person,

trust or association of persons for the offence referred to in that subsection.

(4) Any person who would have committed an offence if any act had

been done or omitted to be done by him or her personally commits that offence and is

liable to the same penalty if that act had been done or omitted to be done by his or her

agent or officer in the course of that agent’s business or in the course of that officer’s

employment, unless he or she proves that the offence was committed without his or her

knowledge or consent and that he or she took all reasonable precautions to prevent the

doing of, or omission to do that act.

PART 7

MISCELLANEOUS

Act not to limit powers of investigation authorities

66. This Act does not affect a competent authority’s powers in terms of

other legislation to obtain information for the purpose of criminal investigations.

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Regulations

67. (1) The Minister, after consulting the Council and the Centre, may

make regulations concerning -

(a) any matter that may be prescribed in terms of this Act;

(b) measures to ensure the security of information disclosed to and obtained

by the Centre;

suspected money laundering or financing of terrorism transactions;

(d) internal rules to be formulated and implemented in terms of section 39;

(e) the manner and form in which accountable or reporting institutions are

to keep records required by this Act;

(f) the reasonable steps to be taken by an accountable or reporting

institution to establish the identity of an existing client or prospective

client; and

(g) the procedures to be followed when cash or bearer negotiable

instruments are forfeited to the State in terms of subsection 36(7); and

(h) any other matter which may facilitate the implementation of this Act.

(2) Regulations in terms of subsection (1) may -

(a) differ for different accountable or reporting institutions, categories

of accountable or reporting institutions and different categories of

transactions; and

(b) be limited to a particular accountable or reporting institution or category

of accountable or reporting institutions or a particular category of

transactions.

(3) A regulation made under this section may provide for -

(a) criminal penalties of a fine not exceeding N$10 million or imprisonment

for a period not exceeding five years, or of both such fine and such

imprisonment for any contravention of or failure to comply with such

regulation; or

(b) administrative penalties of a fine not exceeding N$10 million.

Indemnity

68. The Minister, Council, Centre, an employee or representative of the

Centre, a supervisory body or any other person performing a function or exercising a

power in terms of this Act is not liable for anything done in good faith in terms of this

Act.

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Service of notices

69. Any notice, statement or other document which is required to be

prepared, executed or served under this Act must be prepared, executed or served in the

prescribed manner.

Exemptions

70. (1) The Minister may, on the recommendation of the Council, if

he or she considers it consistent with this Act or in the interest of the public, by order

published in the Gazette, exempt a person or class of persons from all or any of the

provisions of this Act for such duration and subject to any conditions which the Minister

may specify.

(2) The Minister may, after having granted an exemption as referred to

in subsection (1), and on recommendation of the Council, by order in the Gazette,

withdraw such an exemption.

Documents tracking

71. (1) Where the Centre or any other competent authority has reason

to believe that a person is committing or is about to commit an offence under this Act,

the Centre or the competent authority may order -

(a) that any document relevant to identifying, locating or quantifying any

property necessary for the transfer of the property, belonging to, or in

the possession or under the control of that person or any other person,

be delivered to it; or

(b) any person to produce information on any transaction conducted by or

for that person with the first-mentioned person.

(2) Any person who does not comply with an order under subsection (1)

commits an offence and is liable to a fine not exceeding N$100 million or to imprisonment

for a period not exceeding, or to both such fine and such imprisonment.

Repeal of laws

72. The Financial Intelligence Act, 2007 (Act No. 3 of 2007), and

Government Notice No. 235 of 15 December 2011 are repealed.

Transitional provisions and savings

73. (1) With effect from the date of commencement of this Act the

current Director and staff of the Centre are deemed to have been appointed in accordance

with this Act and on such conditions of service as applied to them at that date.

(2) Any regulation made or any exemption, notice, circular, determination

or guidance issued or any other thing done under the Act repealed by section 72 is

deemed to have been made, issued or done under the corresponding provision of this

Act.

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Short title and commencement

74. (1) This Act is called the Financial Intelligence Act, 2012 and

commences on a date determined by the Minister by notice in the Gazette.

(2) Different dates may be determined under subsection (1) in respect of

different provisions of this Act.

(3) Any reference in any provision of this Act to the commencement of this

Act is construed as a reference to the date determined under subsection (1) in relation to

that particular provision.

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SCHEDULE 1

ACCOUNTABLE INSTITUTIONS

(Section 2)

1. A person in his or her capacity as either a legal practitioner as defined in

the Legal Practitioners Act, 1995 (Act No.15 of 1995) and who is in private

practice, or an estate agent as defined in the Estate Agents Act, 1976 (Act No.

112 of 1976), or an Accountant or Auditor, or in any other capacity, who accepts

instructions from a client to prepare for or carry out a transaction for the client

in respect of one or more of the following activities:

(a) Buying and selling of real estate for cash or otherwise;

(b) Managing of client money, securities, bank or securities accounts or

other assets;

management of legal persons or arrangements;

(d) Creation, operation or management of legal persons or legal and

commercial arrangements;

(e) Buying and selling of business entities, or parts thereof; and

(f) Buying and selling of legal rights.

2. Any other person or entity that, as part of their normal business activities, buys

and/or sells real estate for cash.

3. Trust and Company Service Providers when they prepare for and carry out

transactions for their client in relation to the following activities -

(a) acting as a formation agent of legal persons;

(b) acting as (or arranging for another person to act as) a director or

secretary of a company, a partner of a partnership, or a similar position

in relation to other legal persons;

correspondence or administrative address for a company, a partnership

or any other legal person or legal or commercial arrangement;

(d) acting as (or arranging for another person to act as) a trustee of a trust;

and

(e) acting as (or arranging for another person to act as) a nominee

shareholder for another person.

4. A person or institution that carries on “banking business” or who is “receiving

funds from the public” as defined in section 1 of the Banking Institutions Act,

1998 (Act No. 2 of 1998).

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5. A person that carries on the business of a casino.

6. A person or entity that carries on the business of lending, including but not

limited to the following:

(a) The Agricultural Bank of Namibia established in terms of the

Agricultural Bank of Namibia Act, 2003 (Act No.5 of 2003);

(b) The Development Bank of Namibia established in terms of the

Development Bank of Namibia Act, 2002 (Act 8 of 2002);

Housing Enterprise Act, 1993 (Act No.5 of 1993).

7. A person who carries on the business of trading in minerals specified in

Schedule 1 of the Minerals (Prospecting and Mining) Act, 1992 (Act No. 33 of

1992) or petroleum as defined in section 1 of the Petroleum (Exploration and

Production) Act, 1991 (Act No. 2 of 1991).

8. Any person or entity trading in the following -

(a) money market instruments;

(b) foreign exchange;

(d) exchange, interest rate and index instruments;

(e) transferable securities;

(f) commodity futures trading; and

(g) any other securities services.

9. A person who carries on the business of rendering investment advice or

investment brokering services.

10. Namibia Post Limited established by section 2(1) (a) of the Posts and

Telecommunications Companies Establishment Act, 1992.

11. A person, who issues, sells or redeems traveller’s cheques, money orders, or

similar payment instruments.

12. A member of a stock exchange licensed under the Stock Exchanges Control

Act, 1985 (Act No. 1 of 1985).

13. Any person or entity that carries on the business of electronic transfer of money

or value.

14. Any person or entity regulated by the Namibia Financial Institutions Supervisory

Authority (NAMFISA) who conducts as a business one or more of the following

activities -

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(a) Individual and/or Collective portfolio management;

(b) Long term insurer;

(d) Friendly society; and

(e) Unit trust managers.

15. A person who conducts or carries on the business of an auctioneer.

16. A person or entity that carries on the business of lending money against the

security of securities.

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SCHEDULE 2

SUPERVISORY BODIES

(Section 3)

1. The Namibia Financial Institutions Supervisory Authority established in terms

of the Namibia Financial Institutions Supervisory Authority Act, 2001 (Act No.

3 of 2001).

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SCHEDULE 3

REPORTING INSTITUTIONS

(Section 2)

1. A person or institution that carries on the business of a motor vehicle dealership.

2. A person that carries on the business of second hand goods.

3. A person that carries on the business of a gambling house, a totalisator or

bookmaker.

4. A person or entity that carries on the business of trading in jewellery, antiques

or art.

5. Any person or entity regulated by the Namibia Financial Institutions Supervisory

Authority (NAMFISA) who conducts as a business one or more of the following

activities -

(a) Short term insurer.

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SCHEDULE 4

REGULATORY BODIES

(Section 3)

1. The Bank of Namibia as defined in the Bank of Namibia Act, 1997 (Act No.

15 of 1997) to the extent that the Bank exercises its powers and fulfils its

regulatory functions under the Banking Institutions Act, 1998 (Act No. 2 of

1998)as amended, the Currency and Exchanges Act, 1933 (Act No.9 of 1933),

the Prevention of Counterfeiting of Currency Act, 1965 (Act No. 16 of 1965),

and the Payment System Management Act, 2003 (Act No. 18 of 2003).

2. The Law Society established in terms of the Legal Practitioners Act, 1995 (Act

No. 15 of 1995).

3. The Estate Agents Board established in terms of the Estate Agents Act, 1976

(Act No. 112 of 1976).

4. The Public Accountants’ and Auditors’ Board established in terms of the Public

Accountants’ and Auditors’ Act, 1951 (Act No. 51 of 1951).

5. The Namibia Stock Exchange established in terms of the Stock Exchanges

Control Act, 1985 (Act No. 1 of 1985).

6. The Casino Board established by the Casinos and Gabling Houses Act, 1994

(Act No. 32 of 1994).

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