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COMPULSORY REGISTRATION FOR NPOS?
The South African non-profit sector will soon have to revisit an important
debate which sparked widespread controversy during the 1990s. The debate
revolved around the question whether NPOs should be compelled to register in
terms of the NPO Act. Voluntary registration eventually prevailed. The right of
to freely associate which was protected by the new constitutional dispensation
largely influenced this chosen path.
A report published recently has made important recommendations which will require South Africa to revisit this issue. The report was published by the Financial Action Task Force and the Eastern Southern Africa Anti-Money Laundering Group and is entitled: Mutual Evaluation Report - Anti-Money Laundering and Combating the Financing of Terrorism (the report).
The report reviews, amongst other, the exposure of NPOs to risks involving terrorist financing and the adequacy of South African laws and regulations in dealing with this. It concludes that South Africa has not assessed potential risks of terrorist financing posed within the non-profit sector and it has not conducted any outreach programme to protect the non-profit sector against terrorist financing abuse. Recommendations to tackle this include:
· Legislation should make provision for mandatory registration of NPOs.
· Enforcement powers under the NPO legislation should provide for the power to sanction office-bearers, impose fines and freeze accounts of NPOs for violation of oversight measures.
· NPOs should maintain information on the identity of board members for a period of at least five years.
The risk of terrorist financing is no doubt an important issue, but it is questionable that compulsory registration is a proper and ideal solution in the South African context. The motivation for compulsory registration is captured as follows in the report:
“The voluntary requirement for the registration of NPOs under the NPO Act undermines the transparency and accountability in the way that NPOs collect and transmit funds in South Africa and creates a loophole that increases the risk of abuse of unregistered NPOs by terrorist financiers.”
This motivation is flawed in my view. Voluntary registration does not automatically increase the risk of abuse of unregistered NPOs. An unregistered NPO will only be able to open a bank account if it complies with the verification procedures laid down in the Financial Intelligence Centre Act (FICA). Without a bank account an unregistered NPO will find it difficult to ‘’collect and transmit funds’. FICA places an obligation on banks to report any suspicious transactions to the financial intelligence centre. No loophole is accordingly created through voluntary registration process.