The year in review and ahead for trusts

• Published date: 02 December 2023
• Publication title: Independent on Saturday

So what

The reforms in South Africa (following international reforms) are here to stay! Even though it is perceived that government may be slow to enforce legislation, especially legislation it is to implement itself, such as the Protection of Personal Information Act (Popia), it is not really the case.

Even though Popia was signed into law in 2013, with many of its key provisions only effective from July 2020, and after companies were given an additional twelve months to ensure that their data processing operations aligned with Popia, it has effectively been in place since July 2021. In July 2023, after it had been in operation for two years, the Information Regulator issued its first fine (R5 million) to the Department of Justice and Constitutional Development for failure to comply with Popia after it openly disregarded an order to renew licenses for antivirus software (this is apparently been taken on review by the department). Even though the Information Regulator has received more than 500 notifications of data violations to date, with little evidence of action, the Information Regulator indicated that more fines are to come.

What is different with the greylisting measures is that an external body (the FATF) (not government itself) will review South Africa’s compliance with the newly introduced greylisting measures, and the timeframe for the effective implementation by government is short – South Africa undertook that it will make sufficient progress in two years (from February 2023 when the country was greylisted) for it to be removed from the greylist by the FATF. Even though one of government’s eight strategic actions it undertook to resolve by January 2025 was to “ensure the effective implementation of targeted financial sanctions“, no evidence exists of any actions taken by it. So, basically, the country only has 2024 left to prove itself.

A quick recap of what

happened in 2023

Government promulgated onerous amendments to the Trust Property Control Act (TPCA) on December 22, 2022 (which were gazetted on December 29, 2022), issued Regulations for its implementation on March 31, 2023, effective from April 1, 2023, and made available a temporary capability to upload “Beneficial Ownership” information onto the Master’s portal. Government only managed to replace this temporary beneficial ownership register developed on a Google Docs platform with a permanent Beneficial Ownership register in October 2023.

Then Department of Justice and Constitutional...