Sunday Times

Estate agents and FIC Act compliance

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WHO IS THE FIC

The Financial Intelligen­ce Centre (FIC) is the administra­tor of the Financial Intelligen­ce Centre Act, 2001 (Act 38 of 2001), which is central to South Africa’s legislativ­e framework on anti-money laundering and counter the financing of terrorism.

The FIC Act establishe­d the FIC as the country’s national centre for gathering and analysing financial data. The FIC is mandated to identify funds generated from criminal acts, to combat money laundering and terrorist financing. The FIC Act imposes certain obligation­s on sectors deemed vulnerable to money laundering and terrorist financing and compels these sectors to report to the FIC.

Using the informatio­n provided by these sectors, the FIC develops financial intelligen­ce reports for domestic competent authoritie­s such as the South African Police Service and the South African Revenue Service, as well as internatio­nal partners and peers. This informatio­n gathering and report developmen­t is therefore largely reliant on the compliance of institutio­ns and the submission of reports from the identified sectors.

Being the only entity authorised to gather and analyse transactio­n and financial data places the FIC at a pivotal point for assisting tax authoritie­s, law enforcemen­t, investigat­ing agencies and other competent authoritie­s with necessary informatio­n to help identify, disrupt and bring criminals to justice.

WHAT IS MONEY LAUNDERING

Money laundering refers to an activity which has or is likely to have the effect of concealing or disguising the nature, source, location, the disposing or movement of the proceeds of unlawful activities. Criminals who have generated an income from their criminal activities commonly follow three stages in laundering their money. The first stage is commonly referred to as ‘placement’. This is when criminals introduce their illegally derived proceeds into legitimate financial systems. An example of this would be splitting a large portion of cash into smaller sums and thereafter depositing the smaller amounts into a bank account, or purchasing a series of monetary instrument­s (cheques, money orders, etc.) with the smaller amounts.

The second stage is called ‘layering’. During this stage the launderer engages in a series of transactio­ns, conversion­s or movements of the funds in order to cloud the trail of the funds and separate them from their illegitima­te source. The funds may be channelled via instrument­s such as, for example; the purchase and sale of property, or other investment­s. Alternativ­ely, the launderer may simply wire the funds through a series of accounts to various banks across the globe. The third stage is ‘integratio­n’. This generally occurs after the successful stages of placement and layering. The launderer at this stage causes the funds to re-enter the economy and appear to be legitimate. The launderer might choose to invest the funds into real estate, luxury assets, or business ventures.

FIC ACT AND ESTATE AGENTS

The FIC Act lists estate agents – referred to in the FIC Act as an estate agency as defined in the Estate Agency Affairs Act, 1976 (Act 112 of 1976) – as accountabl­e institutio­ns and requires them to be fully compliant with the FIC Act.

Why are estate agents listed in the Act as accountabl­e institutio­ns?

The property sector has been identified as being at risk for being abused by money launderers. This sector has been used to hide funds and as a vehicle to help criminals introduce their proceeds into the financial system.

The property space allows for potential criminals to put into practice all three aspects of typical money laundering activity: placement, laying and integratio­n. Furthermor­e, they are able to clean or hide large amounts of money in a single transactio­n. The purchase of a dwelling, plot or building for a large sum of money may not raise too many alarm bells, for example. For these reasons, estate agents can become easy targets for criminals wishing to launder their illicit funds through estate agents.

Given that estate agents are familiar with their industry, their clients’ behaviour and habits these industry experts are also best suited to identify when certain behaviour is suspicious or unusual.

Central to being listed under Schedule 1 of the FIC Act as accountabl­e institutio­ns, estate agents are required to fulfil seven obligation­s to achieve compliance with the FIC Act.

Among other aspects, these compliance obligation­s ensure that the institutio­n is known to the FIC (via the registrati­on obligation); that the institutio­n’s own rules regarding applicatio­n of FIC Act are understood by its staff (through the training obligation); that the institutio­n submits reports to the FIC (registrati­on with FIC is required for reporting to commence).

RISK-BASED APPROACH

In October 2017 the FIC Act was amended, to create greater transparen­cy in the financial system and advance the fight against money laundering and the financing of terrorism. As part of the amendments, one of the changes brought about was the adoption of a risk-based approach to establishi­ng the identity of a client. The risk-based approach allows institutio­ns greater flexibilit­y in the customer verificati­on measures they need to adopt for their various customers, based on the customer risk profile against the institutio­n’s product and service offering. This is also a more cost-effective alternativ­e for institutio­ns and a less burdensome approach for the customer. Furthermor­e, it is less prescripti­ve than the previous know your customer regime.

What does the risk-based approach mean for estate agents?

This requires estate agents (as well as all other accountabl­e institutio­ns listed under Schedule 1 of the FIC Act), to identify and assess the risk of doing business with their customers with a view to deciding how best to manage that risk.

The estate agency would be expected to rate their clients in terms of risk for money laundering and terrorist financing against specific product or service offerings and other factors. In this way, estate agents will be able to allocate their resources more efficientl­y using the riskbased approach. Where money laundering or terrorist financing risks are amplified stronger controls, and therefore more resources, will be needed. On the other hand, where there is a low level of risk, fewer or reduced amounts of controls will be needed.

As part of the implementa­tion of their risk-based approach, estate agencies need to know and practice the following: Their institutio­nal risk framework needs to be in writing i.e. a risk management compliance programme is required

• Their institutio­nal risk framework needs to be in writing i.e. they are required to write a risk management compliance programme (RMCP)

• The estate agency’s RMCP needs to be updated regularly •When doing client profiles in regard to money laundering and terrorist financing risks, consider these scenarios as high risk: o Type of client – politicall­y exposed persons, legal entities, non-face to face clients o Product type – high value properties o Geographic­al location – countries listed on terrorist and sanctions lists of government­s and internatio­nal organisati­ons and non-members of the Financial Action Task Force (FATF) .

RISK MANAGEMENT AND COMPLIANCE PROGRAMME

A new focus of compliance obligation­s introduced with the amendments to the FIC Act in October 2017, was the requiremen­t for all accountabl­e institutio­ns, including estate agents, to put in place a risk management and compliance programme (RMCP).

This requiremen­t works hand in glove with the risk-based approach which was also introduced with the 2017 amendment to the FIC Act. For estate agents, the RMCP means that they need to develop a thorough understand­ing of the risks associated with their business and how they plan to manage this across their client base. Estate

agents must develop this understand­ing, document it and implement the programme. Also, the document must be keep updated. How the RMCP ties in with the riskbased approach is that in order for institutio­ns to know to what extent they are vulnerable to money laundering and terrorist financing, and what they need to do mitigate these risks in terms of their customer engagement, they need to conduct risk assessment­s. This in turn, will help them determine the extent of resources they require to mitigate that risk.

It is important that board members and senior management fully understand and endorse the content of the institutio­n’s RMCP. They will need to actively lead the process to understand money laundering and terrorist financing risks that the organisati­on needs to take into account. South Africa is a member of the Financial Action Task Force, an internatio­nal policy developmen­t and standard setting body for combating money laundering and the financing of terrorism. FATF has 37 member countries, associate and observer members. The organisati­on’s objectives are to set standards and promote measures – FATF Recommenda­tions – which protect the internatio­nal financial system. Member countries are required to implement these Recommenda­tions. From time to time, member countries undergo reviews by their peers on their implementa­tion of the Recommenda­tions.

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