[SPONSORED] Louis Van Vuren, CEO of FISA_org points out that the legislation cannot be rationally connected to the purpose for which it was promulgated. Moneyweb
AMANDA VISSER: Last year South Africa really pulled out all the stops in an effort to avoid being greylisted by the Financial Action Task Force.
Now, the implications of this are that the trustee, under the newly inserted Section 11 of the Trust Property Control Act, will have to hold a register of all the beneficial owners of all the trusts that such a trustee is a trust on. I’ve recently been informed of a very practical example of this, where the trust was originally set up in the early 1990s. The professional trustee took up trusteeship of this trust in 2015. I think the trust was initially set up in 1991, [so 2015 is] 24 years after the setup of the trust. This professional trustee now has to establish the contact details and the personal details of the founder of this trust.
That is particularly used in the case of medical negligence and Road Accident Fund claims, where a trust is set up for the beneficiary of such a claim, and that trust is set up via a court order. The question arises as to who the founder of that trust is. As an example, [often] in a discretionary trust the trustees have the power under the provisions of the trust instrument – the deed, the court order, or the will of a deceased person – to add and remove beneficiaries.
So the concern is that the records that are kept may not be secure enough at the offices of the Master [to ensure] that the information will not leak out to a beneficiary of a trust. And once the beneficiary knows, the beneficiary can accept and can then never be removed as a beneficiary of that trust again, according to the case law that I referred to.
The argument by this business person was that it exposes the person and his or her family to the risk of attack and kidnap, and the European Court for Human Rights agreed with that, and ordered Luxembourg to change its disclosure laws.
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