Some amendments are impossible to comply with in the absence of regulations

Louis van Vuren, CEO at FISA

The Fiduciary Institute of Southern Africa (FISA) expresses its concern about the fact that regulations have not yet been made by the Minister of Justice under the new section 11A(4) of the Trust Property Control Act (the Act) to prescribe the information about “beneficial owners” that must be kept in a register by all trustees, as required by section 11A(1)(a), (b) and (d) of the Act.

This is despite the fact that these sections, which are part of the amendments to the Act by the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 22 of 2022 (the Amendment Act), become effective on 1 April 2023. The amendment act was rushed through Parliament late last year and signed into law by President Ramaphosa on 29 December 2022.

Without regulations, trustees do not have any guidance as to the information they are required to keep with regard to all parties to a trust included in the new definition of “beneficial owner” inserted in section 1 of the Act by the provisions of the Amendment Act. Even if the regulations are made before 1 April, it will be impossible to comply with the legislative provisions in time.

Draft regulations were published earlier in this year and were open for public comment until 13 February 2023. FISA submitted extensive comment to these draft regulations, but has not received any feedback after this submission.

Section 11A(4) of the Act requires the Minister of Justice, who has the power to make regulations under section 24 of the Act, to consult with the Minister of Finance and the Financial Intelligence Centre when making regulations.