CHAPTER 24:24

BANK USE PROMOTION AND SUPPRESSION OF MONEY LAUNDERING ACT

Act 2/2004, 16/2004 (s. 29), 12/2006 (s. 48), 3/2009 (s. 55), SIs. 199/2006 (s. 15), 21/2008, 62/2008, 73/2008, 109/2008.

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY Section

1. Short title and commencement.

PART II

BANKUSE PROMOTION AND SUPPRESSION OF MONEY LAUNDERING UNIT

3. Establishment of Bank Use Promotion and Suppression of Money Laundering Unit.
4. Functions of the Unit.
5. Inspectorate of the Unit.
6. Powers of inspectors.
7. Power of Director to issue directives to financial institutions for purposes of this Act.
8. Reports of the Unit
9. Bank Use Promotion and Suppression of Money Laundering Advisory Committee. PART III

BANKUSE PROMOTION

10. Traders, parastatals and moneylenders to open and keep accounts with financial institutions.
11. Traders and parastatals to bank surplus cash in an account within a certain time.
12. Traders and parastatals to settle certain trade debts otherwise than in cash.
13. Records to be kept by traders and parastatals.
14. Unlawful trading in cash.
15. Maximum cash to be kept by moneylenders.
16. Abolition, freezing and monitoring of charges by financial institutions for deposit, withdrawal or transfer of cash or other financial services.
17. Financial institutions to offer deposit facilities on reasonable deposit requirement terms.
18. Disclosure orders under Part III.
19. Compliance orders under Part III.
20. Repeated contraventions of sections 10, 11, 12, 13, 14, 15, 16 and 17.
21. Temporary restrictions on cash withdrawals from financial institutions.
22. Unlawful hoarding of cash.

PART IV

SUPPRESSION OF MONEY LAUNDERING

23. Interpretation in Part IV.
24. Designated institutions to verify customers’ identity
25. Designated institutions to establish and maintain customer records.
26. Designated institutions to report suspicious transactions.
27. Designated institutions to establish and maintain internal reporting procedures.
28. Reporting of suspicious transactions by employees of designated institutions.
29. Disclosure orders under Part IV.
30. Compliance orders under Part IV.
31. Powers of inspectors and police officers under Part IV.
32. Offences under Part IV.

PART V

SEIZURE OF CASH UNLAWFULLYHELD

Division A: Cash Detainable Offences

33. Powers of search, entry and seizure.
34. Search warrants in relation to cash held in connection with cash detainable offences.
35. Search in emergencies.
36. Inspector to be accompanied by police officer.
37. Verification of whether cash is detainable, and custody, return and forfeiture of seized cash.
38. Proof of certain matters in prosecutions for cash detainable offences.

Division B: Seizure and Detention of Cash or Currency Held in connection with Offences other than Cash Detainable Offences

39. Seizure and detention of cash that is the proceeds of crime or used in unlawful dealings in foreign currency.
40. Seizure and detention of suspicious imports or exports of currency.
41. Applicability of Cap. 9:17 where tainted property consists of currency, other property or both.

PART VI

GENERAL

42. Secrecy, immunity and protection of designated institutions.
44. Immunity where official powers or functions exercised in good faith.
45. Saving of privileges to legal profession.
46. Costs of applications in chambers.
47. Special jurisdiction of regional magistrates courts.
49. Saving of powers exercised under Statutory Instrument 171 of 2003.

SCHEDULES

First Schedule: Designated Institutions.

Second Schedule: Relevant Financial Business.

Third Schedule: Provisions Applicable to the Bank Use Promotion and Suppression of Money Laundering Committee.

AN ACT to promote the use and suppress the abuse of the banking system; to enable the unlawful proceeds of all serious crime including drug trafficking to be identified, traced, frozen, seized and eventually confiscated; to establish a Bank Use Promotion and Suppression of Money Laundering Unit; to require financial institutions and cash dealers to take prudential measures to help combat money laundering; and to provide for matters connected with or incidental to the foregoing.

[Date of commencement: 17th February 2004 (except for Part IV); Part IV - 1st September, 2004.

PART I

PRELIMINARY

                   1    Short title and commencement

• This Act may be cited as the Bank Use Promotion and Suppression of Money Laundering Act [Chapter 24:24].
• Part IV shall come into operation on a date to be fixed by the President by statutory instrument, and the remainder of the Act shall come into operation on the day of its publication in the Gazette.

2    Interpretation In this Act

“account” means any facility or arrangement by which a financial institution does any one or more of the following

• accepts deposits of currency;
• allows withdrawals of currency or transfers into or out of the account;
• pays cheques or payment orders drawn on a financial institution, or collects cheques or payment orders on behalf of a person;
• supplies a facility or arrangement for a safety deposit box;

“cash” means Zimbabwean coins and banknotes that are currently designated as legal tender, and includes any Reserve Bank bearer cheques issued in terms of section 42A of the Reserve Bank of Zimbabwe Act [Chapter 22.15];

[Definition substituted by section 48 of Act 12 of 2006]

“cash dealer” means a person who does any one or more of the following

• carrying on the business of an insurer, an insurance intermediary, a securities dealer or stock broker, a futures broker, or an operator of a gaming house, casino or lottery;
• issuing, selling or redeeming travellers’ cheques, money orders or similar instruments, dealing in bullion, or collecting, holding and delivering cash as part of a business that provides payroll services;
• money-changing, that is, exchanging currency, money cheques, travellers cheques or other negotiable instruments;

“cash detainable offence” means any one of the following offences in respect of which cash may be seized from a person in anticipation of prosecuting that person for the offence—

• a contravention of a compliance order referred to in paragraph (b), (e) or (g) of subsection (1) or subsection (2) of section nineteen; or
• a contravention of section twenty relating to a breach of section eleven or subsection (1) of section fourteen or section fifteen; or
• a contravention of subsection (1) of section twenty; or
• a contravention of subsection (1) of section twenty-two;

“compliance order” means an order issued in terms of section nineteen or thirty, as the case may be;

“currency” means the coin and banknotes of Zimbabwe or of a foreign country that has been designated as legal tender and is ordinarily used and accepted as a medium of exchange in the country of issue, and the terms “Zimbabwean currency” and “foreign currency” shall be construed accordingly;

“defendant” means a person suspected of or charged with

• a serious offence; or
• a cash detainable offence; or
• an offence referred to in section thirty-two; whether or not he or she has been convicted of the offence;

“designated institution” means any person designated in the First Schedule;

“Detained Cash Trust Account” means the Detained Cash Trust Account referred to in subsection (1) of section thirty-seven;

“Director” means the Director of the Unit appointed in terms of subsection (3) of section three;

“disclosureorder” means an order issued in terms of section eighteen or twenty-nine, as the case may be;

“document” means any record of information, and includes anything that

• is written; or
• contains marks, figures, symbols, or perforations that have meaning and can be interpreted by persons qualified to do so; or
• has sounds, images or writings that can be produced, with or without the aid of anything else; or
• is a map, plan, drawing, photograph or similar thing;

“finance agent” means a person who discounts private sale agreements, that is, agreements under which goods are sold by another person who is not a registered operator as defined in the Value Added Tax Act [Chapter 23:12];

“financial institution” means—

• any banking institution registered or required to be registered in terms of the Banking Act [Chapter 24:20]; or
• any building society registered or required to be registered in terms of the Building Societies Act [Chapter 24:02]; or
• the People’s Own Savings Bank established in terms of the People’s Own Savings Bank of Zimbabwe Act [Chapter 24:22]; or
• the Reserve Bank;

“fixed date” means the date fixed or specified in terms of subsection (2) of section one as the date of commencement of this Act or Part IV, as the case may be;

“gift” includes any property or benefit transferred by a person to another person directly or indirectly

• after the commission of a serious offence by the first person; or
• for a consideration the value of which is significantly less than the value of the consideration provided by the first person; or
• to the extent of the difference between the market value of the property transferred and the consideration provided by the transferee;

“identity document” means

• a document issued to a person in terms of subsection (1) or (2) of section 7 of the National Registration Act [Chapter 10:17], or a passport or drivers licence issued by or on behalf of the Government of Zimbabwe; or
• any visitors entry certificate or other certificate or permit issued to a person in terms of the Immigration Act [Chapter 4:02], or in terms of any enactment relating to refugees; or
• any passport, identity document or drivers licence issued by a foreign government;

“interest”, in relation to cash, includes either or both of the following

• any beneficial interest whatsoever in the cash, whether present, future or contingent;
• a right, power or privilege in connection with the cash;

“inspector” means a person referred to in section five;

“law enforcement agency” means the Police Force (including a member of the Police Constabulary as defined in section 2 of the Police Act [Chapter 11:10]) or an intelligence service maintained by the Government, or any agency assigned by an enactment to maintain and enforce the law;

“Minister” means the Minister of Finance and Economic Development or any other Minister to whom the President may, from time to time, assign the administration of this Act;

“moneylender” means a person licensed as a moneylender under the Moneylending and Rates of Interest Act [Chapter 14:14];

“negotiable instrument” means any bill of exchange, letter of credit, cheque, draft or other document, whether negotiable or not, which has been drawn or issued either inside or outside Zimbabwe and is intended to enable any person to obtain, either directly or indirectly, any sum of money, whether in Zimbabwean or foreign currency;

“parastatal” means any corporate body—

(a)        established by or in terms of any Act of Parliament for special purposes specified in that Act; or (b)     wholly owned or controlled by the State;

“proceedings” means any procedure conducted by or under the supervision of a judge or magistrate in relation to any alleged or proven offence, or cash held in connection with such offence, and includes an inquiry, investigation, or preliminary or final determination of facts;

“property” means currency and all other real or personal property of every description, whether situated in Zimbabwe or elsewhere, tangible or intangible, and includes any interest in such property;

“property of or in the possession or control of any person” includes any gift made by that person;

“relevant financial business” means business referred to in the Second Schedule;

“Reserve Bank” means the Reserve Bank of Zimbabwe referred to in section 4 of the Reserve Bank of Zimbabwe Act [Chapter 22:15];

“serious offence” means an offence

• punishable by imprisonment for a period of twelve months or more, with or without the option of a fine;
• against a law of a foreign State, in relation to acts or omissions which, had they occurred in Zimbabwe, would have constituted an offence referred to in paragraph (a);

“tainted property” has the meaning given to that term in section 2 of the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];

“trader” means a person referred to in paragraph (a) of section ten;

“Unit” means the Bank Use Promotion and Suppression of Money Laundering Unit established in terms of section three;

“unit trust scheme” has the meaning given to that term in section 2 of the Collective Investment Schemes Act, 1997;

“Zimbabwe Revenue Authority” means the Authority established in terms of section 3 of the Revenue Authority Act [Chapter 23:11].

(2) A reference in this Act to

• a male or female person includes, where appropriate, a corporate body;
• money laundering or laundering the proceeds of a serious offence means any act, scheme, arrangement, device, deception or artifice whatsoever by which the true origin of the proceeds of any serious offence is sought to be hidden or disguised;
• a person being charged or about to be charged with a serious offence is a reference to a procedure, however described, in Zimbabwe or elsewhere, by which criminal proceedings may be commenced;
• a benefit obtained or otherwise accruing to a person, includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at the request or direction of that person.

(3) For the purposes of this Act—

• dealing with property held by any person shall include—
  • where the property is a debt owed to that person, making a payment to any person in reduction or full settlement of the amount of the debt; or
  • converting or receiving the property as a gift; or
  • removing the property from Zimbabwe;
• a person shall be deemed to have benefited from the proceeds of a serious offence if—
  • he or she at any time, whether before or after the fixed date, receives any payment or other reward in connection with, or derives any pecuniary advantage from the commission of a serious offence, whether committed by him or her or another person;
  • he or she receives or derives a payment, reward or pecuniary advantage in connection with the commission of a serious offence, whether he or she receives or derives such payment, reward or pecuniary advantage before or after the fixed date;
  • the value of his or her proceeds from a serious offence is the aggregate of the values of the payments, rewards or pecuniary advantages received or derived by him or her in connection with the commission of the offence.