Page 37 - Nexia SAB&T Trust Guide 2024

Thus, if the trust instrument permits the estate planner to have a casting
vote (an extra vote given by a person to decide an issue when the votes on
each side are equal, therefore a determining vote), the trust’s assets may be
included in the estate of the estate planner upon his or her death in terms
of the provisions of Section 3(3)(d) of the Estate Duty Act, thereby defeating
the object of creating a trust in the first place.
■ Protection of Personal Information Act (no.4 of 2013) (“POPIA”) –
commenced on 1 July 2020. All business and legal entities, whether owned
by individuals, companies, partners, sole proprietors, close corporations,
NGO’s /PBO’s, associations, which includes business trusts, are required to
comply with POPIA. The trustees of business trusts are required to adhere to
the 8 general conditions for the lawful processing of personal information of
its data subjects (whether they are its clients /suppliers or employees), as set
out in the Act, which can be summarised as:
1. Accountability
2. Processing limitation
3. Purpose specification
4. Further processing limitation
5. Information quality
6. Openess
7. Security Safeguards
8. Data Subject participation
In addition, when processing the personal information of a minor child (a
person below the age of 18 years old), perhaps in the child’s capacity as a
beneficiary of a trust, a trustee should be cognisant of Section 35 of POPIA,
which states that the processing of information about children is only allowed
if: (i) it is carried out with the prior consent of a competent person (such
as a parent or guardian) (ii) it is necessary for the establishment, exercise
or defence of a right or obligation in law (iii) it is necessary to comply with
an obligation of international public law (iv) it is for historical, statistical or
research purposes or (v) it is of personal information which has deliberately
been made public by the child with the consent of a competent person.
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