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TRUST PROPERTY CONTROL ACT No. 11 of 2018

This article is for you if:

You have a sizable estate with property
You desire to create or change your will
You conduct or desire to carry out charitable work

Trusts have since time immemorial been recognised by law as separate legal entities and are most commonly utilised for testamentary dispositions of property where there is more than once beneficiary to a deceased’s estate, as well as for charitable purposes. In terms of entities formed for charitable purposes whilst there are other entities that can be incorporated, establishing a Trust was often preferred as the incorporation and filing requirements were not as onerous as for Societies or Companies Limited by Guarantee. Trusts are established by a trust instrument, commonly referred to as a Trust Deed, which appoints a trustee as well as allocates property to be held in the Trust, which property is held for the benefit of beneficiaries.

This Act commenced on 28^th June 2018 and governs the creation and administration of Trusts in Botswana. Priorly governed by the common law, the Act codifies various principles relating to Trusts and creates registration and on-going filing requirements to be administered by the office of the Master of the High Court. In terms of on-going filing requirement, since the introduction of the Act these still remain fairly minimal. The Act requires all trust instruments to be registered with the Master of the High Court, who is also responsible for maintaining a register of trustees. It is notable that the definition of “Trust Instrument” does not require a trust instrument to take a specific form and includes “a written agreement, testamentary writing, court order or a notarial deed according to which a trust is created”. The inclusion of “testamentary writing” means that a will can establish a Trust if it contains a clause which creates the Trust after the passing of the deceased, whilst previously this was not possible.

All Trusts established prior to the commencement of the Act have been given until 28 December 2018 to be validated by registration with the Master. Failure to validate Trusts will attract sanctions in the form of a fine or imprisonment. Any changes to Trust instruments will also need to promptly be notified to the Master. Trustees are required to be confirmed by the Master in writing and are also required to furnish security to the satisfaction of the Master since the introduction of the Act. The Act clearly identifies the duties of trustees, both when the Trust is in existence as well as post-termination and regulates other matters like their appointment, remuneration, resignation and removal from office. The Act also introduces identification requirements for Trust property, to ensure that it is easily identifiable and does not constitute an asset owned by a trustee in his/her personal capacity. All Trusts that have been established prior to the commencement of the Act have been given until May 2019 to ensure that Trust property is properly registered and identified.

Despite the Act having introduced more stringent requirements for the establishments of Trusts in Botswana, the limitation on powers of trustees and recourse available to beneficiaries in instances of abuse of power by trustees, increase confidence in the establishment of Trusts for purposes of property management in the country.

Contact Us and we will help you set up your trust.

DATA PROTECTION ACT

No. 32 of 2018

This Act was passed in August 2018, however has not yet commenced. It introduces new laws In Botswana for the protection of personal data and to ensure the privacy of individuals in relation to their personal data. Prior to the introduction of this Act, there were no laws in Botswana that specifically protected personal data and in a day and age of significant technological advancements, these laws are necessary to ensure that the collection, processing and storage of personal data belonging to other individuals is regulated.

The driving force behind the Data Protection Act was the Maitlamo, Botswana’s National Information and Communications Policy approved by the National Assembly in August 2007. The policy was aimed at increased use of technology to effectively drive social, economic, cultural and political development in the country by making government services predominantly available online through e-service platforms. In order to achieve this goal, it was acknowledged that legal reforms would be necessary including the introduction of data protection laws, since personal data would be stored and processed through electronic means.

The Act clearly defines what constitutes personal data, which definition includes not only information by which persons can be identified, but even that which makes them potentially identifiable whether directly or indirectly. The Act establishes the Information and Data Protection Commission, which will be responsible for ensuring effective application of and compliance with the Act after its commencement. All complaints and investigations pertaining to the Act will be dealt with by the Commission and in the event any parties to proceedings before the Commission are dissatisfied with the decision of the Commission, these can be appealed to the Information and Data Protection Appeals Tribunal. The duties of the Commission are widely crafted and include providing guidance and instructions on appropriate measures to ensure the security of personal data, informing individuals of their rights in relation to data protection and conducting research and studies and promoting educational activities relating to the protection of personal data.

The jurisdiction of the Act extends to data controllers situated outside Botswana where the data is processed using means situated in Botswana, although the transfer of personal data outside Botswana is limited severely. Some of the key provisions of the Act include requirements for data to be processed, privacy protection of personal data and set criteria for processing of data for various different purposes. There are also additional safeguards for dealing with “Sensitive Personal Data”. The Act prescribes hefty penalties in the form of monetary fines and imprisonment for violations of its provisions. Although the Act has not yet commenced, there is a transition period of 12 months from commencement within which all processing of personal data must be made compliant with the Act.

This Act is a welcome addition to the current laws in force in Botswana, and collectively with other laws in the process of being promulgated on other affected areas of information and communications technology and e-commerce, will increase the effectiveness of Government departments and encourage investor confidence in the country.