Money Laundering and Financing of Terrorism (Prevention) Act, 2011
Act 6 of 2011
- Published in Government Gazette on 23 August 2011
- Commenced on 23 March 2012 by Money Laundering and Financing of Terrorism (Prevention) (Amendment) Act, 2016
- [This is the version of this document from 28 September 2016.]
- [Note: The original publication document is not available and this content could not be verified.]
- [Amended by Money Laundering and Financing of Terrorism (Prevention) (Amendment) Act, 2016 (Act 5 of 2016) on 28 September 2016]
Part 1 – Preliminary
1. Short title and commencement
2. InterpretationIn this Act unless the context otherwise determines—"Accountable Institution" means an Institution listed in Schedule 3;[definition of "accountable institution" substituted by section 2(a) of Act 5 of 2016]"act of terrorism" means an act as defined in the Suppression of Terrorism Act, 2008;"Appeals Tribunal" means the Board appointed in terms of section 35ter of this Act;[definition of "Appeals Tribunal" inserted by section 2(b) of Act 5 of 2016]"beneficial owner" means a person or persons who ultimately owns or controls a customer and/or the person on whose behalf a transaction is being conducted and includes those persons who exercise effective control over a legal person or arrangement;"Board" means the board of the SFIU established under section 27;"business relationship" means any arrangement or proposed arrangement between a person and an accountable institution where—(a)the purpose or effect of the arrangement is to facilitate an occasional, frequent, habitual or regular course of dealing between the person and the institution; and,(b)the total amount of any payment to be made by any person to any other in the course of that arrangement is not known or capable of being ascertained at the time the arrangement is made."competent authority" means—(a)the Attorney General;(b)the Director of Public Prosecutions;(c)the Governor of the Central Bank of Swaziland;(d)the Commissioner General;(e)any law enforcement agency and any person exercising such powers on behalf of the foregoing authorities; or(f)such other person as the Minister may, by Notice published in the Gazette, designate;"Council" means the Council of the Task Force established in terms of section 39 of this Act;[definition of "Council" inserted by section 2(b) of Act 5 of 2016]"Court" means the High Court or a Magistrate’s Court, as the case may be;"customer", in relation to a transaction or an account, includes—(a)the person in whose name a transaction or account is arranged, opened or undertaken;(b)a signatory to a transaction or account;(c)any person to whom a transaction has been assigned or transferred;(d)any person who is authorised to conduct a transaction; or(e)such other person as the Minister may, by Notice published in the Gazette, prescribe;"data" means representations, in any form, of information or concepts;"Director" means the Director of the Swaziland Financial Intelligence Unit appointed by the Minister in terms of section 21."forfeiture" means the permanent deprivation of property by order of court;"law enforcement agency" means—(a)the Police;(b)the Immigration Service;(c)the Anti Corruption Commission; or,(d)such other person or institution as the Minister may, by Notice published in the Gazette, prescribe;"funds" means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form including electronic or digital, evidencing title to, or interest in, such assets including but not limited to cash, bank credits, travelers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit;[definition of "funds" inserted by section 2(b) of Act 5 of 2016]"Institution" means an Accountable Institution;[definition of "Institution" inserted by section 2(b) of Act 5 of 2016]"instrumentality" means any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act whether committed within Swaziland or elsewhere;[definition of "instrumentality" inserted by section 2(b) of Act 5 of 2016]"law enforcement agent" means an officer from a law enforcement agency;[definition of "law enforcement agent" inserted by section 2(b) of Act 5 of 2016]"Minister" means the Minister responsible for Finance;"occasional transaction" means any transaction involving cash that is conducted by any person otherwise than through an account in respect of which the person is the customer;"offence" means the offence of money laundering or the offence of financing of terrorism, or any offence listed in Schedule 1 to this Act;"payable-through accounts" means correspondent accounts that are used directly by third parties to transact business on their own behalf;"person" means any natural or legal person and includes a body of persons, whether it has legal personality or not;"persons, groups and entities involved in acts of terrorism" means—(a)persons who commit, or attempt to commit, acts of terrorism or who participate in, or facilitate, the commission of acts of terrorism;(b)groups and entities owned or controlled directly or indirectly by such persons; and persons, groups and entities acting on behalf of, or under the direction of, such persons, groups and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons, groups and entities;"politically exposed person" means a person who holds, or has held, a prominent public position, whether in Swaziland or in a foreign country, including, but not limited to, a Head of State or Government; a politician on the national level; a senior Government, judicial, military or party official on the national level; a senior executive of a State-owned enterprise of national importance; or an individual or undertaking identified as having close family ties or personal or business connections to any of the aforementioned persons;"proceeds of a crime" means any money or property that is derived, obtained or realised, directly or indirectly, by any person from—(a)the commission of an offence punishable by imprisonment for life or for a period exceeding 12 months; or,(b)an act or omission committed or done outside Swaziland, which if it were committed or done in Swaziland, would constitute an offence referred to in paragraph (a);"production order" means an order requiring a person to produce any document or information in readable form for the purpose of identifying, locating or quantifying the property, or identifying or locating such document or information, of a person who has been convicted of the offence of money laundering;"property" means currency or any asset of any kind, whether corporeal or incorporeal, moveable or immovable, tangible or intangible, and includes legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit, whether situated in Swaziland or elsewhere and includes any legal or equitable interest in any such property;"registrable property" means property the title to which is passed by registration in accordance with the provisions of the Deeds Registry Act, 1968, or the Road Traffic Act, 2007;"relevant appeal date" used in relation to a forfeiture order made in consequence of a person's conviction of an unlawful activity means—(a)the date on which the period allowed by rules of court for the lodging of an appeal against a person's conviction or for the lodging of an appeal against the making of a forfeiture order expires without an appeal having been lodged, whichever is the later; or,(b)where an appeal against a person's conviction or against the making of a forfeiture order is lodged, the date on which the appeal lapses in accordance with the rules of court or is finally determined, whichever is the later;"restraint" means the temporary prohibition of the transfer, conversion, disposition or movement of property or the temporary assumption of custody or control of property on the basis of an order issued by a Court;"SFIU" means the Swaziland Financial Intelligence Unit as established in section 19 of this Act;"shell bank" means a bank incorporated in a jurisdiction in which it has not physical presence and which is unaffliated with a regulated financial group;[definition of "shell bank" inserted by section 2(b) of Act 5 of 2016]"supervisory authority" means any authority having oversight over an accountable institution;"Task Force" means the National Task Force on Anti Money Laundering appointed in terms of section 38;"tainted property" means the property intended for use in, or used in or in connection with the commission of an unlawful activity; and the proceeds of crime;"Task Force" means the Council and the Technical Committee established in section 39 of this Act;[definition of "Task Force" inserted by section 2(b) of Act 5 of 2016]"Technical Committee" means the Technical Committee of the Task Force established in terms of section 39 of this Act;[definition of "Technical Committee" inserted by section 2(b) of Act 5 of 2016]"terrorist group" means a group or organisation as defined in the Suppression of Terrorism Act;"terrorist property" means property of a terrorist as defined in the Suppression of Terrorism Act;"unlawful activity" means an act or omission which if committed in Swaziland or elsewhere, would constitute a criminal offence.
3. ApplicationNotwithstanding anything contained in any other law, an accountable institution shall be compelled to comply with the provisions of this Act.
Part 2 – Offences relating to money laundering and financing of terrorism
4. Offence of money laundering
5. Offence of financing of terrorism
Part 3 – Risk assessment and obligations to verify identity and keep records[heading amended by section 5(i) of Act 5 of 2016]
6. Risk assessment and management
6bis. Accountable institutions to verify customers’ identity and transactions
7. Necessity of identification to conduct businessIf satisfactory evidence of the identity of a customer is not produced to, or obtained by, an accountable institution in accordance with section 6, the accountable institution shall report the attempted transaction to the SFIU and shall not proceed any further with the transaction unless directed to do so by the SFIU.
8. Accountable institution to maintain records
9. Accountable institution to maintain account in true name
10. Financial institutions and money transmission service providers to include originator information
11. Accountable institution to monitor transactions
Part 4 – Obligations to report
12. Accountable institution to report suspicious transactions
12bis. Cash threshold reports
13. Supervisory authority or auditor to report suspicious transactionsWhere a supervisory authority or an auditor of an accountable institution suspects or has reasonable grounds to suspect that information that it has concerning any transaction or attempted transaction may be—
14. Disclosure of suspicious transaction reports and other informationA person or an institution shall not disclose to any person—
15. Protection of identity of persons and information in suspicious transaction reports
16. Protection of persons reporting suspicious transactions
17. Privileged communication
18. Other preventative measures by accountable institutions
18bis. Responsibility of supervisory authorityA supervisory authority shall, for the purposes of this Act,—
Part 5 – Swaziland Financial Intelligence Unit and the Swaziland Task Force
19. Establishment of the Swaziland Financial Intelligence Unit (SFIU)A financial intelligence unit to be known as the Swaziland Financial Intelligence Unit ("SFIU") is hereby established which shall be an autonomous central national agency responsible for receiving, requesting, analysing and disseminating to competent authorities disclosures of financial information as required under this Act in order to counter money laundering and financing of terrorism.
20. General powersThe SFIU may do all that is necessary or expedient to perform its functions effectively, which includes the power to—
21. Appointment of Director
22. Qualification of DirectorThe Director shall be a person of recognised qualification, integrity and experience in financial or legal matters or law enforcement with financial investigative background.
23. Removal from office
24. Acting Director
25bis. Security screening of staff
26. Declaration of assets and liabilities and confidentiality
27. The Board
28. Composition of the Board
29. Reports to the Board and Parliament
30. Disclosure of information
31. Functions and powers of SFIUThe SFIU—
32. Disclosure to foreign institutions and agenciesThe SFIU may disclose any report or information as set out under section 31 (n) to an institution or agency of a foreign state or of an international organisation or body or other institution or agency established by the governments of foreign states that has powers and duties similar to those of the SFIU—
34. Power to examine
35. Powers to enforce compliance
35bis. Administrative sanctions
35ter. Appeals Tribunal
36. ImmunityNo action shall lie against the Director, any officer, employee or agent of the SFIU or any person acting under the direction of the Director for anything done in good faith in the administration or discharge of any powers, duties or functions under this Act.
37. Funds and financial year of SFIU
38. The Task ForceThere is hereby established a Task Force which shall be the policy making organ for anti-money laundering and counter financing of terrorism in Swaziland.
39. Composition of the Task Force
40. Functions of the Task Force
Part 6 – Currency reporting at point of entry or departure
41. Currency reporting at point of entry or departure
42. Seizure of cash or negotiable instrumentsAn authorised officer may seize and, in accordance with this Part detain, any cash or negotiable bearer instruments which is being imported into, or exported from, Swaziland, in any form or manner if that officer has reasonable grounds for suspecting that it is—
43. Retention and release of cash or negotiable instruments seized
Part 7 – Restraint, search, seizure and forfeiture[Part 7 substituted by section 24 of Act 5 of 2016]
45. Restraint of property
46. Service of and registration of restraining order
47. Contravention of restraining order
48. Extension of restraining order
49. Seizure of property subject to restraint order
50. Powers to search for and seize tainted property or terrorist property
51. Search warrants in relation to tainted property or terrorist property
52. Search warrants may be granted by telephone, etc
53. Searches in emergencies
54. Record of property seizedA law enforcement agent who seizes property under section 49 or section 50 shall detain the property seized, make a written record thereof, and take reasonable care to ensure that the property is preserved.[section 54 substituted by section 24 of Act 5 of 2016]
55. Return of seized property
56. Search for and seizure of property in relation to foreign offencesWhere a foreign State requests assistance to locate or seize property suspected to be tainted property in respect of an offence within its jurisdiction or property suspected to be terrorist property, the provisions of sections 52, 53 and 54 apply in so far as is applicable, provided that the Minister of Justice and Constitutional Affairs has, under the Criminal Matters (Mutual Assistance) Act, 2001, authorised the giving of assistance to the foreign State.[section 56 substituted by section 24 of Act 5 of 2016]
57. Forfeiture of property
58. Application of procedure for enforcing fines
59. Effect of forfeiture order
60. Procedure for in rem forfeiture order where person dies or absconds
61. Forfeiture where a person dies or abscondsSubject to section 60(3), where an application is made to the Court under section 60(1) for a forfeiture order against any tainted property in consequence of a person having died or absconded in connection with an unlawful activity and the Court is satisfied that—
62. Voidable transfersThe Court may, before making a forfeiture order, set aside any conveyance or transfer of property that occurred during or after the commission of an unlawful activity or offence, unless the conveyance or transfer was made for good cause to a person acting in good faith and without notice.[section 62 substituted by section 24 of Act 5 of 2016]
62bis. Establishment of Fund
62ter. Receipts and disbursements
62quat. Establishment of Committee
62quin. Meetings of Committee
62sext. Objects of CommitteeThe objects of the Committee are to—
62sept. Functions and powers of Committee
62quat. Annual report to ParliamentThe Minister of Finance shall, not later than the first sitting of Parliament after the expiry of 90 days from the end of the financial year, table a report in Parliament, detailing the—
Part 8 – Pecuniary penalty orders
63. Pecuniary penalty order on conviction
64. Rules of determining benefit and assessing value
65. Statements relating to benefits from commission of unlawful activity or offence
66. Amount recovered under pecuniary penalty order
67. Variation of pecuniary penalty orderWhere—
68. Lifting the corporate veil
69. Enforcement of pecuniary penalty ordersWhere the Court orders a person to pay an amount under a pecuniary penalty order, the provisions of section 47 shall apply with such modifications as the Court may determine for the purpose of empowering the Court to impose a term of imprisonment on a person in default of compliance by that person with a pecuniary penalty order.
70. Discharge of pecuniary penalty ordersA pecuniary penalty order is discharged—
Part 9 – Other matters
71. Property tracking and monitoring
72. Overriding of confidentialityAn accountable institution shall comply with the requirement of this Act notwithstanding any obligation as to confidentiality or other restriction on the disclosure of information imposed by any written law or otherwise.
73. Account in fictitious, false or incorrect name
74. Liability of employers and principalsAny act done or omitted by a person as an employee or agent shall, for the purposes of this Act, be treated as done or omitted by that person’s employer or principal, if it was done with the knowledge or approval of the employer or principal or without such knowledge or approval if it was the result of lack of supervision, provided, in the case of an agent, that he or she acted within the terms of his or her agency or contract.
75. Liability of directors, controllers or officers of bodies corporateWhere any body corporate is convicted of an offence under this Act every director, controller or officer concerned in the management of the body corporate shall be guilty of the offence where it is proved that the act or omission that constituted the offence took place with that person’s knowledge, authority, permission, or consent.
75bis. United Nations Security Resolutions
Part 10 – Offences and penalties
76. Offence of money launderingAny person who engages in any act in contravention of section 4, commits an offence.
77. Offence of financing of terrorismAny person who engages in any act in contravention of section 5, commits an offence.
78. Failure to establish and verify identity of persons and transactionsAn accountable institution that performs any act to give effect to a business relationship or transaction in contravention of sections 6(1) and (3) and 6bis (1), (2), (3) and (4), commits an offence.[section 78 amended by section 25 of Act 5 of 2016]
79. Failure to maintain recordsAn accountable institution that fails to—
80. Failure to maintain account in true nameAn accountable institution that fails to comply with the provisions of section 9(1) or (2), commits an offence.
81. Failure to report transactions[heading amended by section 26(a) of Act 5 of 2016]
82. Providing false or misleading statementsA person who in making a report under section 12 or 13 makes any statement that the person knows is false or misleading in a material particular or omits from any statement any matter or thing without which the person knows that the statement is false or misleading in a material particular, commits an offence.
83. Unauthorised disclosure of suspicious transaction reports and other information
84. Failure to formulate and implement internal rulesAn accountable institution that fails to formulate and implement internal rules in accordance with section 18(1) (b), commits an offence.
85. Failure to appoint compliance officer or provide trainingAn accountable institution that fails to—
85bis. Dealing with shell banksA financial institution which fails to act in accordance with section 18(4) commits an offence.[section 85bis inserted by section 28 of Act 5 of 2016]
86. Obstructing of official in performance of functionsAny person who willfully obstructs, hinders or threatens an official or representative of the SFIU in the performance of their duties in exercise of their powers in terms of this Act, commits an offence.
87. Failure to comply with monitoring and restraint orderAn accountable institution that fails to comply with an order by a court in accordance with section 44 or 71, commits an offence.
88. Opening account in fictitious, false or incorrect nameA person who opens, operates or authorizes the opening or the operation of an account with an accountable institution in a fictitious, false or incorrect name commits an offence.
Part 11 – General provisions
90. Money laundering and financing of terrorism offences for extradition purposesFor the purpose of any law relating to extradition of fugitive offenders, money laundering and financing of terrorism shall be offences for which extradition or rendition may be granted.
91. Mutual assistance
92. RegulationsThe Minister may make regulations consistent with this Act—
92bis. SchedulesThe Minister may, acting in consultation with the Director, amend any of the Schedules to this Act.[section 92bis inserted by section 30 of Act 5 of 2016]
93. SavingsNotwithstanding the provisions of section 94, the SFIU may deal with a suspicious business transaction report made to the Supervisory Authority in terms of the Money Laundering (Prevention) Act, 2001, as if it had been made under this Act.
94. RepealThe Money Laundering (Prevention) Act, 2001, is hereby repealed.
History of this document
28 September 2016 this version
23 March 2012
23 August 2011
Published in Government Gazette numberRead this version
Cited documents 0
Documents citing this one 5
- Swaziland Government Gazette dated 2012-03-23 number 28
- Swaziland Government Gazette supplement dated 2012-10-19 number 114
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- Swaziland Government Gazette supplement dated 2014-10-17 number 110