Statutes section 6

Section 6: Acquisition, possession or use of proceeds of unlawful activities

In force from 1 February 2002

6. Acquisition, possession or use of proceeds of unlawful activities

Any person who -

(a) acquires;

(b) uses; or

property and who knows or ought reasonably to have known that it is or forms part of the proceeds of unlawful activities of another person, shall be guilty of an offence."

179 of the Constitution of the Republic of South Africa, 1996, and established in terms of section 2 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

"non-compliance" means any act or omission that constitutes a failure to comply with a provision of this Act or any order, determination or directive made in terms of this Act and which does not constitute an offence in terms of this Act, and 'fails to comply', 'failure to comply', 'non-compliant' and 'not complying' have a corresponding meaning;

"offence relating to the financing of terrorist and related activities" means an offence under section 4 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);

"prescribed" means prescribed by the Minister by regulation in terms of section 77;

"Prevention Act" means the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);

"proceeds of unlawful activities" has the meaning attributed to that term in section 1 of the Prevention Act;

"proliferation financing" or "proliferation financing activity" means an activity which has or is likely to have the effect of providing property, a financial or other service or economic support to a non-State actor, that may be used to finance the manufacture, acquisition, possessing, development, transport, transfer or use of nuclear, chemical or biological weapons and their means of delivery, and includes any activity which constitutes an offence in terms of section 49A;

"prominent influential person" means a person referred to in Schedule 3C;

"property" has the meaning attributed to that term in section 1 of the Prevention Act;

"Public Protector" means the Public Protector referred to in Chapter 9 of the Constitution of the Republic of South Africa, 1996;

"reporting institution" means a person referred to in Schedule 3;

"Risk Management and Compliance Programme" means the programme contemplated in section 42(1);

"single transaction" means a transaction—

(a) other than a transaction concluded in the course of a business relationship; and

(b) where the value of the transaction is not less than the amount prescribed, except in the case of section 20A;

"South African Revenue Service" means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);

"Special Investigating Unit" means the Special Investigating Unit established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996);

"supervisory body" means a functionary or institution referred to in Schedule 2;

"terrorist and related activities" has the meaning assigned to it in section 1 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act. 2004 (Act No. 33 of 2004);

"this Act" includes any regulation made or exemption given under this Act;

"trust" means a trust defined in section 1 of the Trust Property Control Act, 1988 (Act No. 57 of 1988), other than a trust established—

(a) by virtue of a testamentary disposition;

(b) by virtue of a court order;

2 In terms of section 1 of the Prevention Act, this term means "any property or any service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, in the Republic or elsewhere, at any time before or after the commencement of this Act, in connection with or as a result of any unlawful activity carried on by any person, and includes any property representing property so derived".

3 In terms of section 1 of the Prevention Act, this term means "money or any other movable, immovable, corporeal or incorporeal thing, and includes any rights, privileges, claims and securities and any interest therein and all proceeds thereof".

(d) by the trustees of a retirement fund in respect of benefits payable to the beneficiaries of that retirement fund,

and includes a similar arrangement established outside the Republic;

"unlawful activity" has the meaning attributed to that term in section 1 of the Prevention Act.⁴

(2) For the purposes of this Act a person has knowledge of a fact if–

(a) the person has actual knowledge of that fact; or

(b) the court is satisfied that–

(i) the person believes that there is a reasonable possibility of the existence of that fact; and

(ii) the person fails to obtain information to confirm or refute the existence of that fact.

(3) For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached, are those which would have been reached by a reasonably diligent and vigilant person having both–

(a) the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and

(b) the general knowledge, skill, training and experience that he or she in fact has.