UWCScholar :: Browsing by Author "Hamman, Abraham"

Browsing by Author "Hamman, Abraham"

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An analysis of the challenges in curbing and combatting Covid-19 related money laundering threats and vulnerabilities in South Africa
(University of the Western Cape, 2022) Wesso, Coleta Janine; Hamman, Abraham
Earth is confirmed to be the only planet in the entire known universe perfectly located and resourced to host earthly life as we know it.1 It is indeed a phenomenon to behold. South Africa, often referred to as the Rainbow Nation, certainly speaks to this phenomenon. The country is granted miraculous landmarks, tourist attractions, lush vegetation, platinum metals, gold,2 cultural diversity and beautiful citizens.3 Cape Town, the capital city of the Western Cape Province and also the legislative capital of South Africa,4 is in fact named the third greatest city on earth because of its, amongst other aspects, outstanding topography and geography.5 It is, however, incontestably and unfortunately so that with this said splendour, detriment also resides.
Assessing the effectiveness of the public procurement Act of 2007 in combatting corruption in Nigeria
(University of the Western Cape, 2023) Ayinde, Dare Joseph; Hamman, Abraham
The Public Procurement Act of 2007 (the PPA) was enacted to provide a sound legal and institutional framework for public procurement in Nigeria and prevent and curb corruption in the procurement process. However, although the PPA has been in force for more than 16 years, there is a doubt over its effectiveness as the level of corruption in the procurement process has not significantly reduced. This thesis examines how well the PPA prevents and combats corruption in the procurement process through the lens of game theory, the study of decision-making during which players must decide on strategies affecting the interests of other parties involved. In particular, it evaluates the PPA's suitability for preventing and combating corruption in the procurement process and points out any weaknesses in its provisions that reduce the effectiveness of the PPA in accomplishing so. The thesis establishes that the PPA has detailed provisions on the pre-contract and contract phases of procurement, with the exception of the post-contract phase of procurement, where its provisions are inadequate. It submits that the perceived ineffectiveness of the PPA in preventing and curbing corruption can be traced to two things. First, the poor implementation of its provisions, particularly the ex post facto anti-corruption provisions such as those regarding exclusion and debarment. Another example of the poor implementation of the PPA is the failure of the government to inaugurate the National Council on Public Procurement, one of the regulatory bodies established by the PPA. Secondly, there are gaps and flaws in the provisions of the PPA that make it less effective in preventing and combatting corruption in the procurement process.
Carpe Pecuniam: Criminal forfeiture of tainted legal fees
(Pretoria University Law Press, 2020) Hamman, Abraham; Koen, Raymond
A person charged with money laundering has a right to legal representation and a lawyer is entitled to defend such person. What if the lawyer is paid with dirty money? This paper explores the legal status of tainted fees, to determine whether such moneys should be forfeitable and, if so, what forfeiture means for the client’s right to legal representation and the lawyer’s right to practise his\her profession. This is an issue of international import and the paper considers criminal forfeiture of tainted legal fees in South Africa, the USA and Canada. All three jurisdictions provide for the criminalisation of tainted fees. However, South African lawyers are most in peril both of prosecution and conviction for accepting tainted fees and of having such fees confiscated. Whereas the USA and Canada uphold the right of lawyers to practise their profession, South Africa appears to negate it. The South African position requires reform.
Cave pecuniam: Lawyers as launderers
(North-West University, 2012) Hamman, Abraham; Koen, Raymond
In South Africa there is something almost sacrosanct about an attorney's trust account. It is the prescribed destination of all funds paid in trust by a client to an attorney. Clients tend to have complete confidence in the fact that their money is entrusted thus. Its very designation as trust money encourages such confidence. The trust account is also the account in respect of which the Attorneys Fidelity Fund requires an annual audit to determine if an attorney is awarded the Fidelity Fund Certificate which he requires to practise. All in all, the trust account is the barometer of the good standing of a law practice, and the index of its trustworthiness. Hence the aura of venerability which surrounds it.
Cellphone technology, human rights and the criminal justice system
(The Centre for the Study of Violence and Reconciliation, 2010) Hamman, Abraham
Millions use cellphones every day. It is unthinkable for anyone to not have one in his/her possession. We can be reached almost everywhere and at almost every destination. It is small, compact and extremely user friendly. Even school children from an early age pester their parents for this device. For some it is an irritation, for other an integral part of their daily existence - without which they cannot do.
A comparative analysis of protective measures for vulnerable and intimidated victim-witnesses in South African and English law.
(Criminological and Victimological Society of Southern Africa (CRIMSA), 2010) Wolhuter, Lorraine; Hamman, Abraham
This article evaluates protective measures for vulnerable witnesses in light of both the Victims' Charter and measures in English law, giving effect to the right to protection in the Framework Decision on the Standing of Victims in Criminal Proceedings. It further highlights the fact that special measures for vulnerable witnesses are inadequate, being restricted to intermediaries and CCTV testimony. The pre-recorded evidence-in-chief and cross-examination, along the lines of the Youth Justice and Criminal Evidence Act 1999 (YJCEA), ought to be introduced. It was found that the hearsay exception does not adequately protect vulnerable witnesses who are too afraid to testify. An exception to this, such as that in the Criminal Justice Act 2003, which permits a court to admit hearsay evidence if a vulnerable witness does not give evidence through fear. Drawing on European Court of Human Rights and English case law, it could be argued that pre-recorded video evidence-in-chief and cross-examination, as well as a hearsay exception based on fear of testifying, would not infringe the accused's constitutional right to challenge evidence. The article also assesses the restrictions on sexual history evidence as contained in the YJCEA. These have been interpreted by the House of Lords to permit sexual history evidence that is relevant to an act of consent, i.e. to disallow it would violate the accused's right to a fair trial. In this article it is also argued that the Legislature is unlikely to succeed in preventing the admission of sexual history evidence based on gendered constructions of consent. The article goes on to postulate that sexual offence victims should be granted leave for their lawyers to object to the admission of such evidence. The article concludes by arguing that, in order to create the impetus to introduce the measures that it advocates, the Victims' Charter should be revised to adopt the expansive right to protection enshrined in the Framework Decision.
Compensation orders in criminal proceedings - a fresh perspective
(Litnet Akademies, 2017) Hamman, Abraham; Nortje, Windell
South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses compensation orders as a possible form of punishment that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate victims who have suffered damage or loss resulting from criminal activities.
A critical assessment of the constitutionality of section 79(7) of the Correctional Services Act 111 of 1998, with specific reference to the proviso
(University of Western Cape, 2019) Pillay, George Aloysius Permall; Hamman, Abraham; Albertus, Chesne
In recent years the issue of medical parole has become a controversial issue in South Africa. Prior to 2012, at which juncture the law governing the release of inmates on grounds of terminal illness was amended, there were cases where the public deemed the law inadequate and susceptible to political interference.1 There can therefore be little doubt that an amendment to the law was opportune to ensure that the release of inmates was based on legitimate medical reasons.
Die bekendmaking van die identiteit van anonieme minderjariges by meerderjarigheid: regverdigbaar of nie?
(LitNet Akademies, 2016) Hamman, Abraham; Nortje, Windell
Die identiteit van minderjariges word nie bekendgemaak tydens hofverrigtinge nie. Sowel getuies as slagoffers en oortreders kry hierdie vergunning en word deur die wetgewer beskerm. Hierdie beskerming verval egter wanneer hulle 18 jaar oud word. Indien hulle nie die howe nader vir 'n verbod op die publikasie van hul identiteit nie, is daar geen remedie vir sulke persone nie. Hierdie bydrae kyk spesifiek na die posisie van anonieme minderjarige getuies, slagoffers en oortreders wanneer hulle 18-jarige ouderdom bereik. Dit word gedoen om te bepaal of hierdie persone se identiteit met die bereiking van 18 jaar bekendgemaak moet word en of hulle wel geregtig op verdere anonimiteit is. 'n Ander kwessie is of 'n veroordeelde minderjarige misdadiger anders as getuies en slagoffers by die bereiking van meerderjarigheid behandel moet word. Die moontlike effek van media-aanslae op die emosionele ontwikkeling van sulke 18-jariges word ook onder die soeklig geplaas. Verskeie bepalings in Suid-Afrikaanse wetgewing word ontleed wat wel die identiteit van minderjariges beskerm. Die twee uiteenlopende gevalle van Zephany Nurse en die Griekwastad-seun word met mekaar vergelyk. Die een was 'n slagoffer in 'n babadiefstalsaak en die ander 'n veroordeelde minderjarige oortreder. Albei is nou ouer as 18 jaar en waar die een se huidige identiteit deur 'n hofbevel beskerm word, is die ander se identiteit al verskeie kere bekendgemaak nadat hy 18 geword het. Daar word ook verwys na 'n Engelse saak waar beslis is dat twee veroordeelde minderjarige oortreders se nuwe identiteite wel verswyg moet word na hulle 18 jaar oud geword het, omdat die familie en vriende van hul slagoffer moontlik die wet in eie hande kon neem. Daar word aanbeveel dat die wetgewer oorweging daaraan moet skenk om die bekendmaking van die identiteite van minderjarige getuies, slagoffers en oortreders by die bereiking van 18-jarige ouderdom te hersien.
The disclosure of the identities of anonymous minors upon the age of majority: clean slate or dismal fate?
(LitNet Akademies, 2016) Hamman, Abraham
The identity of minors (juveniles under the age of 18 years) is protected during court proceedings. However, when they turn 18, their identities are no longer withheld by the courts and the media. This article examines two different cases of 18-year-olds who made media headlines. The first is that of Zephany Nurse, who was kidnapped as a baby. Her abductor(s) registered her under a different name and it is this identity that is at stake. Zephany is the name given to her at birth by her biological parents. Although she is known in the media as Zephany, she requested that the name given to her by her kidnappers should not be revealed by the court. In terms of a court order the media undertook not to disclose Zephany's current name. The other case is that of the Griquatown youth who killed his family and whose identity was disclosed to the press on the day of his 18th birthday. Although his identity was protected throughout the trial, it was revealed during sentencing proceedings when he turned 18. Various provisions of South African legislation and international law protect the identity of witnesses, victims and offenders under the age of 18 years and declare that their identities should not be disclosed. Usually a pseudonym is used in the case of such minors, or he or she is known as Mr. X or Ms. X, respectively. Consequently, the person is granted an opportunity to continue with a normal life. Because there is no provision protecting the identity of 18-year-olds, it may be published by the media. This applies to 18-year-old witnesses, victims and perpetrators. The primary aim of this contribution is to determine whether or not the identity of anonymous minor witnesses, victims and perpetrators should be published upon their reaching the age of 18. A further issue is whether a convicted 18-year-old offender should be treated the same as witnesses and victims or whether victims and witnesses have a stronger claim to the protection of their identity. This discussion also refers to an English case involving a minor, James Bulger, who was brutally killed, and analyses how the courts dealt with the publication of the identity of the juvenile offenders when they turned 18. Moreover, the international position is examined, as well as the South African legislation regarding the position of witnesses, victims and offenders. The article concludes with a recommendation as to how future legislation could deal with the situation.
Grappling with the scourge of money laundering during the Covid-19 pandemic in South Africa
(University of the Western Cape, 2022) Wesso, Coleta; Hamman, Abraham
The deadly COVID-19 pandemic has unfortunately presented new opportunities for perpetrators to exploit. As such, hefty amounts of economic crimes such as money laundering and money laundering threats were committed from the dawn of the COVID-19 pandemic, up to date of publication of this article. This criminal activity is highly likely to continue unless proficient solutions are efficiently activated and essentially carried out. This article sets out the ML and ML threat findings in South Africa as well as internationally during the pandemic, the South African anti-money laundering (AML) framework status quo, and what the way forward could be.
Impact of Cleint Record Keeping on the Legal Profession in South Africa
(University of the Western Cape, 2017) Frans, Cameron Benjamin; Hamman, Abraham
The combating of money laundering has become crucial since it has escalated from a domestic to an international problem and vice versa. South Africa, in an attempt to combat money laundering has enacted anti-money laundering (AML) and anti-terrorism legislation. The legislation consists of the Prevention of Organised Crime Act 121 of 1998 (POCA); the Financial Intelligence Centre Act 38 of 2001 (FICA); and the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 (POCDATARA). In essence POCA and POCDATARA criminalise money laundering and terrorist financing. FICA requires certain professions, such as the legal profession to maintain specific controls. Such controls include AML measures, combating the financing of terrorism (CFT) and also require the keeping of confidential client records, the filing of suspicious transaction reports (STR's) and certain cash transaction reports (CTR's).
Nowhere to hide- big brother is watching you: non-communicative personal cellphone information and the right to privacy.
(Nelson R Mandela School of Law, 2010) Hamman, Abraham
By utilising the latest cellphone technology, non-communicative personal information, such as, the number that is dialled, the time the call is made, the movement and location of both the caller and the recipient of a call, can be obtained. This information is not ordinarily available to the police and it usually requires prior judicial authorisation to access this information. The problem is, that the cellphone companies, their employees, and criminals who want to know the location and movement of other citizens in order to commit crime, can access this information. The Protection of Personal Information Bill suggests new methods of operating with regard to the collection and/or dissemination of any personal information and aims to protect individual's right to data privacy and protection of personal information. If an individual has a right to privacy in his movement and location is not addressed by the Bill. This bill must, however still be passed by Parliament. On the other hand, this type of information, if utilised by the police services, can play a crucial role in solving crime, and the use thereof should be encouraged to solve crimes, provided that the proper legal authorisation is obtained. Are the nature and extent of non-communicative information, and details obtained from cellphone records, such as, the location and movement of users, worthy of being protected by the right to privacy? The key issue with regard to cellphones is whether the keeping and use of this non-communicative information by cellphone companies are intrusions on an individual's right to privacy. Does the right to privacy protect non-communicative personal information obtained from cellphone records? The right to privacy has been included in the South African Constitution as a fundamental right and enjoys both common law and constitutional protection.
Pecunia non olet: dirty money as legal fees
(Bellville: University of the Western Cape, 2017) Hamman, Abraham; Koen, Raymond
It is axiomatic that lawyers have to be paid for their services. Regrettably, lawyers who represent money launderers may be offered dirty money, that is, proceeds of crime as fee payments by their clients. This essay explores the question of such tainted legal fees in South Africa through an analysis of its anti-money laundering (AML) legislation. It then compares the South African position to the approaches taken in the USA and Canada. South African AML legislation criminalises tainted fees. The USA amended its AML legislation to decriminalise tainted fees. And tainted fees never have been criminalised in Canada. The South African approach threatens both the right of accused persons to legal representation and the right of lawyers to practise their profession. It is recommended that the South African AML statutes be amended to decriminalise tainted legal fees.
Phishing in the world wide web ocean: Roestof v Cliffe Dekker Hofmeyr Inc - A case of cyber laundering through an attorney's trust account
(University of the Western Cape, Faculty of Law, 2013) Hamman, Abraham
Money launderers are always exploring new channels to clean their ill-gotten gains. The attorney’s trust account is especially attractive to persons, or organisations, that seek to launder money. As a result, the Financial Action Task Force (FATF) has included lawyers amongst other professionals who are regarded as targets in complex money laundering schemes. In Roestof v Cliffe Dekker (Roestof) a trust account of an attorney was transformed into an instrument of crime and manipulated in pursuit of a criminal purpose. This crime was in the process hidden behind the veil of credibility which attaches to the trust account. Attorneys’ firms have vast amounts of money in their trust accounts. They must be heedful, on the one hand, of not becoming victims of money launderers as a result of phishing schemes and, on the other hand, they must be alert to the fact that their accounts may be used as one-stop laundromats to clean the money. In this article the behaviour of two attorneys will be discussed: the one attorney, Roestof, whose money was fraudulently transferred out of his Absa Bank private account, and Adriaans, the other, a director at the time of Cliffe Dekker, who caused the money to be transferred to the cyber launderer. The article then further examines the court’s failure to discuss the conduct of the attorneys in relation to suspicious and unusual transactions and includes recommendations as to how attorneys can put safeguards in place to avoid becoming victims. In Roestof, an amount of R350 000 was fraudulently transferred out of the plaintiff’s personal account, and R200 000 thereof was cleaned via the trust account of the defendant firm. One of the directors of the firm was led to believe that the firm was receiving payment of a debt due to one of its clients. It was the client who used the attorney firm’s trust account as a conduit to decontaminate the criminal proceeds of the phishing scam and caused the onward transmission of the money to another party. Attorneys need to be much more watchful to avoid becoming victims of phishing schemes and be much more alert to the fact that there are criminals who may masquerade as clients, who will utilise their accounts as devices to clean their ill-gotten gains.
Reporting obligations: A challenge for South African lawyers.
(University of Western Cape, 2019) Dowman, Nadia; Hamman, Abraham
“Threats to the independence of the legal profession have become a preoccupation for bar leaders, regulators and academics, driven by the dual pressures of globalization and the changing business structure of the profession.”1 Money laundering is a transnational economic crime that has plagued the world economy for many decades. It is a crime that eluded the attention of most world leaders. Hence, it is this elusiveness and this non-interest in money-laundering as a serious economic crime, that afforded many individuals such as former dictators and military leaders in developing countries the chance to avoid prosecution for depleting the economic resources of their particular state.2
The South African Legal Practice Act: the requirement for University law clinics to have trust accounts: oversight or deliberate barrier?
(Faculty of Law University of the Western Cape, 2016) Hamman, Abraham
The Legal Practice Act (LPA) appears to have far-reaching implications for legal practitioners at university law clinics. This article will, however, focus only on the compulsory requirement that attorneys at university law clinics should have Fidelity Fund Certificates(FFCs) and therefore open (and presumably operate) separate trust accounts to permit them to practise. This requirement did not exist in terms of the Attorneys Act. This article therefore explores the viability of this new requirement and investigates whether it is essential and complies with the mandate of law clinics. The rationale for establishing university law clinics will be investigated and their activities scrutinised to ascertain whether the requirement is justified. The first part of the article contains the relevant provisions in the LPA and endeavour to explain why this requirement is placed on attorneys at law clinics. Thereafter an examination is conducted to explain why attorneys are required to have trust accounts and attorneys' roles at law clinics. The article then concludes by questioning whether it is reasonable to have a legislative requirement for attorneys employed at university law clinics to have FFCs.
Vergoedingsboetes in strafregtelike verrigtinge - ŉ vars perspektief
(Litnet Akademies, 2017) Hamman, Abraham; Nortje, Windell
South African courts have to deal with the sentencing of convicted accused on a daily basis. While presiding officers are well-trained and experienced in sentencing matters, it seems that compensation orders are not generally invoked as a form of punishment. This article discusses the compensation penalty as a possible punishment means that could be used in our courts. It could be one of the factors that may help to reduce an accused’s prison sentence and also to compensate the victim who has suffered damage resulting from the criminal activity. The accused’s constitutional right to a fair trial provides that the lightest possible punishment should be imposed upon him. If a compensation fine is indeed a more lenient sentence, it should then be imposed. The actual sentence rests solely on the discretion of the presiding officer. There are various sentencing options available to the presiding officer of which life imprisonment is the heaviest, and a fine the most lenient. A fine is a form of punishment which requires the accused to pay an amount of money to the state. A compensation order on the other hand is a sentencing option that requires the accused to pay a monetary amount, as determined by the court, to the victim. Notably, the court will not grant such an order if the accused does not have the financial means to pay the compensation. Compensation orders may take various forms and are not limited to monetary amounts. Compensation orders are regulated in terms of sections 297 and 300 of the Criminal Procedure Act 51 of 1977. Compensation orders in criminal proceedings in South African courts are rather the exception than the rule. Although it is included in sections 297 and 300, it is not regularly applied by our courts. It may be that some courts are unaware of these types of sentences or that the focus is more geared towards the accused and on the interest of the broader community, as opposed to the victims. Consequently, victims in criminal proceedings are more often than not placed in a disadvantaged position as their requests for compensation are frequently disregarded by courts. Apart from the specific provisions of the Criminal Procedure Act dealing with such compensation orders, this discussion also deals with some court decisions where it was placed under the spotlight.

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