WHAT IS FICA and WHY WE NEED IT?

 

FICA stands for The Financial Intelligence Centre Act, which came into effect on 1 July 2003.

 

FICA was introduced to fight financial crime, such as money laundering, tax evasion, and terrorist financing activities. FICA brings South Africa in line with similar legislation in other countries.

 

FICA is essentially a means to ensure that an institution is required to ”get to know the client”. Financial institutions, like banks or other organizations such as attorneys firms or estate agencies do this by keeping proper records of their clients, requesting particulars and keeping a proper record of where the funds are coming from and where they are going.

 

It is therefore a legal requirement for financial institutions to FICA their clients in order to prevent financial crimes. The Act, places an obligation on the banks/attorneys firms to FICA their clients and it is a criminal offence for them not to do so.

 

The failure to FICA clients can lead to a prision sentence (ranging from 5 to 15 years) and or a fine (ranging from R 1 000 000 to R 10 000 000) depending on the offence, hence the

 

Some offences that are punishable under the Act, include, but not limited to;

 

• Failure to identify persons involved in a contractual obligation
• Destroying or tampering with records
• Failure to advice Centre of a suspicious client/person
• Failure to report cash transactions
• Failure to report suspicious or unusual transactionsWe have therefore drafted a list of requirements that should be given or requested to your friendly attorney firm (that would be us) or other institution.For individual:

1. Copy of client’s ID book;
2. Utility bill – no older than 3 months and showing clearly the clients’ physical address;
3. SARS document where clients’ SARS registration number is clearly visible.

 

For Companies and CC’s

 

1. the registered address of the close corporation or company;
2. the name under which the close corporation or company conducts business;
3. the address from which the close corporation or company operates, or if it operates from multiple addresses –

• • the address of the office seeking to establish a business relationship; and
  • the address of its head office;
  • the full names, date of birth and identity number or nationality (as may be applicable), concerning –
  • the manager of the company; and
  • each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the company; and
  • the full names, date of birth, identity or registration number, nationality, address and / or legal form, as may be applicable, concerning the natural or legal person, partnership or trust holding 25%  or more of the voting rights in the company.

 

Documents required for companies

1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
3. a utility bill (no older than 3 months) or copy thereof;
4. Certificate of Incorporation (form CM1) and Notice of Registered Office and Postal Address (form CM22) – Companies.

Documents required for Closed Corporations

1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
3. a utility bill (no older than 3 months) or copy thereof;
4. Founding Statement and Certificate of Incorporation (form CK1) and Amended Founding Statement (form CK2) if applicable – Close Corporations.

For Partnerships:

1. the name of the partnership,
2. the names, date of birth, identity or registration number, nationality, addresses and / or legal form, as may be applicable, concerning, every partner, including every member of a partnership the person who exercises executive control over the partnership;
3. each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the partnership.

Documents required for Partnerships

1. identity document for all partners; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
3. a utility bill (no older than 3 months) or copy thereof;
4. Partnership agreement.

For all your contract/property needs, contact our offices on 031 003 0630 or charmaine@schwenninc.co.za

GOOD NEWS FOR SINGLE PARENTS:

It was common practice that both parents of children had to submit their income and expenditure to the schools which their children attend.

This was most predominantly used when parents were applying for any exemptions for their children’s school fees.

This was the practice even if the parents were divorced or separated. This posed a lot of stress on the primary care giver of the child when paying for all the child/children’s educational needs in spite of their poor financial disposition.

The stress caused on the parents and children involved has and still is an epidemic that is widely felt especially by single headed households. It has especially become evident that these unneccesary and aviodable stresses filter down to these children.

It has been agreed that something needed to be done in order to give children their inherent right to education as enshrined in the Constitution and The Childrens Act, irrespective of their upbringing and the circumstances.

New law on school fee exemptions:

A new court ruling has ajudicated on this point in an effort to relieve the stress on the single headed households that are looking for the best education for their children.

As aforementioned, it was the status quo for both parents to submit their income and expenditure so that the exemption could be appropriately calculated, which was often at times very embarrassing for all parties envolved as parents would have to show that they were “too poor” to pay the required school fee prices.

The school governing bodies will now be given new and improved criteria in which to follow when they are deciding on which parents should be given such exemptions. This is to give regard to the childs right to good education instead of punishing the child due to the parents inability to pay their fees.

The law previously stated that both parents of a child, whether married or not were jointly and severally liable for their childs school fees. The Supreme Court of Appeal however has ruled that single parents applying for exemptions will be assessed on based on their own individual financial means.

How can one apply and what is the process of obtaining an exemption?:

The parent(s) would be required to contact the school and fill out the necessary paper work. This would include having  to agree to sumbit to a credit check which will confirm  employment details.

The court ruled that parents will not need to disclose their entire financial position to the schools when applying. This saves parents from feelingembarassed when making the application to the school. .

The School’s Governing Body and the principal of the school will then review the application and then decide whether or not to grant an exemption.

 

It is of importance to note that although South Africa is making great strides to protect the rights of children, it also sympathizes with parents taking into account the current prevailing economic times, the scarcity of jobs and unemployment as well as the ever increasing burden of single parent households.

For any advice and or assistance on school fee affairs, maintenance and other children related issues feel free to contact us on 031 003 0630 or charmaine@schwenninc.co.za.

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Cyber Bullying and Harassment in South Africa

What is bullying?

Any type of behaviour by one or more persons that cause either physical, emotional or psychological harm to another person or persons.

Examples of bullying include:

• Calling people names
• Hitting, punching and biting
• Spreading rumours
• Threatening or intimidating people

Cyber bullying is an extension of the above and it includes the use of computers or cell phones and social media. (Facebook, Twitter and Instagram) to embarrass, threaten or cause harm to another person.

Examples of how cyber bullying is perpetrated:

• Text messages
• Picture/video clips
• Emails
• Chat rooms
• Websites

Types of cyber bullying include the following:

1. Harassment

• Involves the consistent sending of messages to a person via cell phone, it is usually repeated and directed at the person
• Direct harassment includes messaging, threats or bullying sent directly to the person and therefore follows that indirect harassment is when the person who is bullied has been subscribed to unwanted online services or dating sites.

1. Impersonation or identity theft

• This occurs when someone breaks into an email or social media account and poses as that person and sends messages in an attempt to damage that person’s reputation or friendship.

1. Outing

• Outing involves sharing someone’s secrets or embarrassing information online.

1. Sexting

• Involves the sending of nude or semi-nude photos or videos and/or sexually suggestive messages.

Differences between cyber bullying and traditional bullying

• Cyber bullying is often anonymous and bullies can strike out at any time or from any place;
• The audience involved in cyber bullying is generally higher due to the fact that the technology is readily available and things can turn “viral” within a couple of minutes;
• The imagery in cyber bullying is often worse, due to the fact that the bullies can include videos and sound effects which can exacerbate the material in question.

 

 

Legal consequences of cyber bullying

1. Human Rights

• Bullying, violates a number of human rights, these include the right to privacy, the right to human dignity, the right to freedom and security of the person.

2. Crimen Injuria

• Is the unlawful, intention and impairment or privacy of another person.

3.  Assault (Does not need to be physical)

• Any unlawful and intention act which results in another person’s bodily integrity being impaired or which inspires a belief or fear that such action will be carried out.

4.  Criminal defamation

• The unlawful and intentional publication of matter concerning another person which tends to injure their reputation.

5.  Extortion

• An act when a person unlawfully and intentionally obtains some kind of advantage which may be used to that person’s disadvantage.

Legal consequences of sexting

Section 19 of the Criminal Law (sexual offences and related Matters) Amendment Act, 2007 provides that any person exposing or displaying or causing exposure or the display of child pornography is guilty of an offence.

So by sending or sharing nude or semi-nude photos or videos and/or suggestive messages via cell phones between children may therefore depending on the content, may also therefore fall within the ambit of the possession or creation, producing and distributing child pornography.

Any child who induces another child to take and send any photos of an illicit nature, shall be guilty of an offence.

What protection does one have to prevent cyber bullying?

The Protection from Harassment Act, 2011 provides comprehensive protection against electronic stalking. The Act transcends beyond the physical aspect of stalking, this is mainly because of the increase of cell phone users and internet users in South Africa.

If a court is satisfied that an incident of harassment is or has taken place, the court may issue an interim protection order at the start of any legal proceedings. In an effort to apprehend offenders, electronic service providers can now be forced to reveal details such as the name, email address or cell phone to which the IP address belongs.

Section 2 of the Act, sets out the process that is required for a Protection order and if the complainant is not legally represented the clerk of the Court must inform the complainant of the following

• The relief that is available to the complainant
• The right to lodge a criminal complaint against the person who is harassing the complainant for crimen injuria, assault, trespass, extortion

The application must be in writing and any supporting affidavits by people with knowledge of the matter may accompany the application. Once all the clerk of the court has received all the documents he/she must immediately submit the documents to the court.

 

Interim Protection Order

Once the court has received the application and supporting documents or any other additional evidence it deems fit (oral or written evidence).

If the Court is satisfied that there is prima facie evidence that:

• The respondent is engaging or has engaged in harassment;
• Harm is being suffered or may be suffered by the complainant as a result of the behaviour/conduct of the respondent if a protection order is not issued immediately;
• The protection granted will be in way of an interim protection order and must be served on the respondent by the clerk of the court, sheriff or peace officer;
• The interim protection order provides that the respondent must show cause on the return date (interim order – temporary order, this is because, often the court will only hear one side of the matter and makes the decision based on the evidence presented. The court then allows for the protection order to be valid from date the interim protection order until the date that the respondent gives their evidence);
• Once an interim protection order is given, the Clerk of the Court, must serve a certified copy and an original warrant of arrest (The warrant of arrest will be effected, should the respondent violate the interim protection order).

At the return date, the Court may upon hearing the respondent’s case, the Court may make the interim protection order, a permanent order or set it aside.

In Summary, cyber bullying is treated the same as physical bullying and is taken seriously by our Courts. A foreseeable problem would be, when reporting the matter to the police, the police are not sure how to deal with the matter or how to proceed with any evidence.

Our what to do list, should you be a victim of cyber bullying or normal harassment is the following.

1. Keep all evidence, screenshot any comments, photos or unwanted material
2. Print out the evidence as this will support any application or affidavit that will be submitted to Court
3. Report the matter to the police and ensure that you get a case number

Useful numbers

SAPS Emergency Services:	10111
Childline South Africa	Report child abuse to Childline South Africa’s toll-free line: 0800 055 555
GBV Command Centre	Contact the 24-hour Gender Based Violence Command Centre toll-free number 0800 428 428 to report abuse
South African Police Service	Report all cases of rape, sexual assault or any form of violence to a local police station or call the toll-free Crime Stop number: 086 00 10111
Legal Aid South Africa	Call the toll-free Legal Aid Advice Line 0800 110 110 for free legal aid if you who cannot afford one
Commission for Gender Equality	Report Gender Discrimination and Abuse: 0800 007 709
South African Human Rights Commission	Call 011 877 3600 to lodge a complaint about human rights violations.
Domestic violence Helpline:	Stop Women Abuse: 0800 150 150
AIDS Helpline	0800 012 322

 

 

THE 16 DAYS OF ACTIVISM KICKED OFF IN KZN UNDER THE THEME #HEARMETOO: END VIOLENCE AGAINST WOMEN AND CHILDREN

The South African government launched the campaign for the year 2018 in Melmoth, KwaZulu-Natal under the #HearMeToo: End Violence Against Women and Children theme. During this time, the government will engage communities and hold discussions about violence in communities. By interacting with victims of violence and abuse, the government seeks to address these issues and curb violence against the vulnerable.

The 16 Days of Activism Against Gender-Based Violence campaign was initiated in 1991 by the Women’s Global Leadership Institute with the purpose of challenging violence against women and girls. Thousands of organisations and many countries began to participate in the campaign every year. The campaign runs from the 25 November to the 10 December, each year with its own theme.

Women, children and the elderly have been subjects of violence in South Africa and a substantial number of these cases don’t get reported. Some of the reasons for this is:

• victims get manipulated into believing that their abusers are justified in abusing them;
• loss of respect and confidence in the law and the justice system based on several cases where perpetrators have been released and not prosecuted;
• some people live in rural arears where there are very little resources and perpetrators take advantage of their ignorance and poverty; and
• the economic state of our country and poverty. It is not uncommon for perpetrators to “negotiate themselves” out of being reported by offering to pay some sort of compensation (damages) to the family.

Abuse takes difference forms, the most common types being physical, sexual and emotional abuse. According to the South African Medical Research Council (MRC), there is a growing number of women who get killed by their partners or ex-partners. This occurs in South Africa more than in any other country.

There has been a series of news about the death of women who were killed by their partners this year alone, including the deaths of Karabo Mokoena, Anelisa Dulaze, and the recent killing of Dibuseng Moss-Chiliza who was shot and killed by her husband at the Durban Magistrates Court while trying to divorce him.

The object that the campaign intends to achieve is to:

• Attract all South Africans to be active participants in the fight to eradicate violence against women and children, hence the theme: Count me in.
• Expand accountability beyond the Justice, Crime Prevention and Security cluster to include all government clusters and provinces.
• Use technology, social media, culture, business and activism to draw attention to the ways in which domestic violence affects the lives of many around the world.
• Promote collective responsibility in the fight to eradicate violence against women and children.
• Create the awareness of domestic violence being a societal issue and in some way encourage the change of behaviour of possible perpetrators.

Any person can participate in the campaign and show support by wearing the red ribbon during the 16 day period. Victims of abuse must feel supported and should have no fear of speaking out about their abusers.

Helpful contacts:

FAMSA has offices nationwide and gives counselling to the abused and families: 011 975 7101 or visit their website www.famsa.org.za.

Lifeline provides 24-hour counselling services. Call the SA National Counselling Line on 0861 322 322.

POWA provides telephonic, counselling and legal support to women experiencing abuse. POWA also accompanies women to court and assists them in filling out documents. The POWA helpline is on 083 765 1235 or visit www.powa.co.za.

Legal Aid South Africa offers legal assistance. To locate your nearest Justice Centre, call 0861 053 425 or visit www.legal-aid.co.za.

Rape Crisis offers free confidential counselling to people who have been raped or sexually assaulted. Call 011 642 4345.

SAPS 10111

Any person can apply for a protection order at the nearest Magistrates Court (Domestic Violence Court) to where they live or work at any time and even on weekends. You will start by applying for an interim protection order by filing a Form 6 which will take effect immediately. You can thereafter apply for Protection Order by completing Form 2 and which is done by way of an affidavit. The Clerk of the court will then send the papers to the Magistrate who will set a date for the hearing. After the court appearance, the court may grant the protection order.

We all must take a stand to eradicate violence against women and children by participating in the campaign and speaking out. We must support victims, to enable them to stand up for themselves. Each victim that is silent places their lives and others in more danger by being silent. Communities must also speak out when they witness acts of violence in their communities so that those who do not have courage can be assisted.