An introduction to trusts in South Africa: A beneficial ownership perspective

Conclusion

South Africa is a trust law country which allows for the creation of domestic trusts. The country has a wide variety of trusts – including a broad range of special trusts with their own specific provisions – which can be classified in a number of ways. Trusts are used by individuals as well as the government itself, for example, to facilitate the redistribution of wealth. Despite the wide array of legitimate uses of trusts, this specific type of legal instrument can be vulnerable to abuse, and it is therefore relevant to regulators and lawmakers interested in advancing BOT reforms in South Africa.

The often-opaque structuring of trusts, which could include a complex web of other legal instruments and legal entities, creates difficulty in establishing who the beneficial owners are when trusts are involved. Whilst this challenge is not unique to trusts, as complex company structure ownership structures can also be used to hide the identities of the natural persons exercising effective control over the decisions of a company, the opacity of and legal protections provided to trusts create unique challenges to understanding their beneficial ownership.

Whilst South Africa does not yet have beneficial ownership of trusts defined in law or require the beneficial owners of trusts to be identified, it does require the registration of trusts, and all trusts must be registered with the Master’s Office, the custodian of all trust deeds. The accompanying policy briefing, Beneficial ownership transparency of trusts in South Africa, [55] discusses the contextual considerations of the BOT of trusts in more detail, along with the potential role the Master’s Office can play in a disclosure regime. The briefing provides a range of recommendations that may be considered in addressing the challenges discussed in this introduction.