The General Laws (Anti-Money Laundering and Combatting Terrorism Financing) Amendment Act, 2022 contained certain amendments to the Trust Property Control Act, 1988, which require trustees to keep specified records regarding each “beneficial owner” of a trust of which he or she is a trustee. This information must be kept by the trustees. However, trustees are also obliged to upload certain prescribed information on a Beneficial Ownership Register created by the Master’s office on the Master’s office web portal.
The following persons are regarded by the Act as “beneficial owners”:
- The founder of the trust;
- Each trustee of the trust;
- Each named beneficiary of the trust;
- A natural person who directly or indirectly ultimately owns the relevant trust property;
- A natural person who exercises effective control of the administration of the trust arrangements that are established pursuant to a trust instrument.
The definitions of beneficial owners under 4 and 5 above are vague and unclear if it does not refer to a trustee or beneficiary – ownership and control as referred to in 4 and 5 above flies in the face of South African trust law – contact us if you should have any questions.
Beneficial Ownership Register
The following information must be recorded by trustees and uploaded with the Master, regarding each beneficial owner:
- The full names;
- Date of birth;
- An official identity document number or passport number, indicating the type of document and the country of issue;
- Residential address;
- If different from residential address, the beneficial owner’s address for service of notices;
- Means of contact – (The Master’s Beneficial Ownership Register requires the email address and cell phone number);
- If the person is a registered tax payer in the Republic of South Africa, the person’s income tax number;
- The class or category of beneficial ownership under which the person falls, i.e.:
- Named beneficiary.
- The date on which the person became a beneficial owner of the trust;
- Where applicable, the date on which the person ceased to be a beneficial owner.
Where a beneficial owner is a minor, the trustee must keep the same detail of the minor’s guardian.
The trustees are also obliged to keep a certified or verified copy of an ID or passport of each identified beneficial owner on record.
Recording of details of accountable institutions by trustees
Trustees must also keep the following on record, notwithstanding all the documents referred to above:
- Name of accountable institutions that the trustees deal with;
- The ID number (if a natural person) or registration number (if a legal person) of the accountable institution;
- The nature of services provided by the accountable institution;
- The nature of transactions with accountable institutions:
- Whether the transaction with the accountable institution was a single transaction (as well as the date of the transaction); or
- Whether the transaction constitutes a business relationship with the accountable institution (as well as the date of the transaction).
The regulations were unceremoniously promulgated on the 31st of March 2023, for implementation on the 1st of April 2023.
The amended Section 19 of the Trust Property Control Act provides that failure to comply with the reporting obligations may lead to a fine of up to R10 000 000-00 or imprisonment for a period up to 5 years or both.
Our offices have endeavoured to convey the legislature’s requirements in summary.
We implore trustees to examine the amendments and regulations referred to above carefully and we urge our clients to provide the above-mentioned information to us correctly and urgently.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)