The General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act has amended the Trust Property Control Act, which governs trusts, including the typical family trusts that have been established for the benefit of many individuals and their families.
In this article, Ernest Mazansky, the head of the tax practice at Werksmans Attorneys, discusses trustees’ additional obligations and responsibilities arising from the amendments to the Trust Property Control Act.
Note: The Act refers throughout to the obligations of a “trustee”. In practice, it is really a reference to the trust itself rather than to the individual trustee of each trust. But because the obligation falls on each trustee of the trust, I also refer to a trustee in this article.
A trustee who has been appointed as such (whether an original trustee when the trust is formed, or a person appointed at a later stage) may not act in that capacity until the Master of the High Court has issued to him or her letters of authority.
Many trust deeds contain clauses indicating when a trustee would be disqualified from acting, but now section 6(1A) has been inserted into the Act to legislate this position.
Disqualified persons would include an unrehabilitated insolvent, someone who is prohibited from being a director of a company, a person who has been removed from an office of trust on the grounds of misconduct involving dishonesty, a person who has been convicted for fraud, theft, forgery or perjury, and similar offences, among others.
Provision is also made for the lifting of these prohibitions. In addition, the Master must establish and maintain a public register of persons who are disqualified from serving as a trustee in terms of an order of court or any other law.
Currently, section 10 of the Act requires that a trustee who receives money must deposit it in a separate trust account at a bank. This obligation is generally discharged by the trust itself opening a bank account.
An additional provision has been added that a trustee must disclose his or her position as trustee to an “accountable institution” with which the trustee engages, and a trustee must make it known to the accountable institution that the transaction or business relationship relates to trust property. In other words, it must be clear that this person is acting in a representative capacity and not in a personal capacity when having these dealings.
An “accountable institution” is defined by reference to the Financial Intelligence Centre Act (Fica) and includes banks, life insurers, legal practitioners, stockbrokers, estate agents, dealers in foreign exchange, financial services providers, and so on, being those that require persons dealing with them to be “Fica-compliant”.
Section 11 of the Act specifies requirements as to how a trustee must ensure and indicate that trust property held by him or her is categorised as such (that is, not a personal property).
An amendment now requires that the trustee must record the precise details relating to accountable institutions which are used as agents to perform any of the trustee’s functions relating to trust property, and from which the trustee obtains services.
These requirements are to be set out in regulations, and draft regulations published contain significant detail such as:
The aspect of beneficial ownership and the need for transparency is a key element that is to be found internationally in regulatory aspects of this type (in fact, similar requirements have now been inserted into the Companies Act to apply to certain companies).
The expression “beneficial ownership” is well known in the commercial world to describe typically the situation where one party is reflected as the holder or owner of an asset – usually shares or other securities – but where that person holds only as a nominee, while another person is the beneficial owner. The definition of “beneficial ownership” introduced into the Act, however, goes much further than this common law meaning.
In relation to a trust, it now means the following:
A new section 11A of the Act has been introduced that requires the following:
The Master’s register must be electronic, and it must provide for access to registered users through a username and password, as well as other security measures, the ability of a trustee to lodge the information of each beneficial owner, to update the information and to upload documents, and other requirements.
In addition, the information contained in the register must be available to various government institutions involved in the intelligence and policing area, including the Public Protector, the South African Revenue Service, the National Prosecuting Authority, and the Special Investigating Unit.
A trustee who fails to comply with the above obligations will have committed an offence and on conviction can be liable to a fine not exceeding R10 million, or imprisonment not exceeding five years, or both.
It is evident that some significant obligations are now imposed on trustees (that is, on trusts) to comply with these provisions and keep adequate records, specifically – though by no means exclusively – in relation to beneficial ownership, and to ensure that the information is updated accordingly.
There are professional firms, such as accounting firms, that provide general services to their clients, including trusts, which will gear up to assist their trust clients in meeting these requirements, and the professional trustee companies will obviously do the same.
But for those trusts who do not have the benefit of these service providers, the trustees will have to ensure that they institute the relevant procedures and maintain up-to-date information as required, upon pain of a possible fine or imprisonment for failing to do so.
Disclaimer: This article is published for informational purposes only and does not constitute legal advice.
Hi there,
Under Master’s authorisation to act, did you mean to say “now” and not “not” in para 2?
“Disqualified persons would not include an unrehabilitated insolvent, someone who is prohibited from being a director of a company, a person who has been removed from an office of trust on the grounds of misconduct involving dishonesty, a person who has been convicted for fraud, theft, forgery or perjury, and similar offences, among others.”