S.L. 16.18 Art. 4Foundations to obtain and keep records of beneficial owners. Cap. 586.

(1) Every foundation shall take all reasonable steps to obtain and at all times hold adequate, accurate and up-to-date information in respect of its beneficial owners, including the details of the beneficial interests held, which shall at least include the following particulars:

(a) the name, the nationality, the country of residence, the date of birth or in the case of a legal organisation, the date of establishment or of registration and an official identification document number indicating the type of document and the country of issue;

(b) the effective date when any person became, or ceased to be, a beneficial owner of the foundation;

(c) the role of the beneficial owner in relation to the foundation in terms of paragraphs (a) to (c) and (e) of the definition "beneficial owner" in regulation 2(1):

Provided that for the purposes of the said paragraph (e), when reference is made to a senior managing official on the basis of his post in the stated office and not on the basis of his ownership or the control exercised over the foundation by other means, then this should be stated clearly and visibly in the register of beneficial owners;

(d) in the case of a beneficiary as defined in paragraph

(d) of the definition "beneficial owner" in regulation 2(1), the nature and extent of the beneficial interest held by such beneficiary and any changes thereto, including the effective date on which his beneficial interest in the foundation has increased or been reduced if such changes take place, as well as, when applicable, an indication as to whether the foundation statute or any other instrument in writing include any suspension of the administrator’s duty to inform such beneficiary of his benefit under the foundation or that he forms part of a class of beneficiaries which may so benefit, and in such case, such person shall not be considered to be a beneficiary until such time as he is informed of such benefit or receives actual benefit.

(2) For the purpose of this regulation, where the beneficiaries of a foundation constitute a class of beneficiaries, the following rules shall apply unless otherwise stated in the statute or the beneficiary statement of the foundation:

(a) the class shall be described and its members declared as required by this regulation;

(b) when reference is made to the "family" of a person, the class is considered to be made up of the person, his direct ascendants, his spouse, his direct descendants, and unless excluded, their respective spouses;

(c) when a child is born or a marriage takes place, unless stated otherwise, such child and spouse shall be declared to the foundation within three (3) months of the birth or marriage;

(d) "children" include children born out of wedlock and adopted children;

(e) "spouse" includes the person to whom the relevant person is married at the relevant time and not persons whom they have divorced or from whom they are separated, and also includes persons with whom there is a civil union or a cohabitation or a arrangement recognised by law in the de facto country where they are habitually resident, including where permitted, of the same gender, and, subject to regulation 4(1)(d), the information prescribed in this sub-regulation shall be submitted to the Registrar for Legal Persons as soon as a beneficiary is determined to form part of a class of beneficiaries or is appointed a beneficiary of the foundation, whichever is the earlier:

Provided that nothing in the above shall affect the interpretation of a statute of a foundation or a beneficiary statement indicating the beneficiaries of a foundation, or any entitlements of persons who may or may not be beneficiaries or have any entitlements, which shall be governed by the statute, the beneficiary statement and principles of applicable law and the declaration made for the purposes of these regulations may not be used for the purpose of proving whether an entitlement exists or not or the extent thereof.

(3) Any person who has reasonable cause to believe that he is a beneficial owner of a foundation shall be bound to provide the information required under sub-regulation (1) to the foundation without delay:

Provided that, without prejudice to the aforesaid, the foundation shall obtain the information required under sub-regulation

(1) from the beneficial owners of the foundation and, or from any (REGISTER OF BENEFICIAL OWNERS – FOUNDATIONS)

natural person whom it has reasonable cause to believe to be a beneficial owner, who shall be bound to provide the said information to the foundation within a reasonable time of being requested, not being in excess of fourteen (14) days, and every beneficiary who acquires, disposes of, increases or reduces his beneficial interest in the foundation, or whose beneficial interest is disposed of, increased or reduced through an action of the administrators of the foundation or of any other person having powers to do so under the deed and, or statute of the foundation, and every person who is appointed or ceases to be or to carry out the role of beneficial owner in relation to the foundation in terms of paragraphs (a) to (c) and (e) of the definition "beneficial owner" in regulation 2(1) shall be bound to provide the said information to the foundation within fourteen (14) days of such event taking place:

Provided further that, in cases where a beneficiary is a legal organisation or a fiduciary or other intermediary, information shall be obtained with reference to the natural person who is the ultimate beneficial owner thereof.

(4) Such information shall be verified by the foundation on the basis of documents, data or information obtained from a reliable source and a foundation shall not enter the name of any beneficial owner in the register of beneficial owners unless it has reasonably confirmed the accuracy of the information. The foundation shall also ensure that it obtains declarations confirming that the beneficial owner is not an intermediary, such as an agent, mandatory or trustee, for another person, and if so, the foundation shall also obtain information on the natural person who is the principal or beneficiary of such intermediary.

Any information contained in the deed or statute of a foundation, or any beneficiary statement, a power of attorney, an engagement or instruction letter, delivered to the Registrar for Legal Persons at the time of the registration of the foundation or at any time thereafter, and any document or notice registered with the Registrar for Legal Persons at any time, any will or any other official document shall be deemed to be sufficiently reliable for the purposes of carrying out the duties under this regulation.

(5) Every foundation established for the benefit of a named beneficiary or beneficiaries or a class of beneficiaries, shall enter the information referred to in sub-regulation (1) in a register of beneficial owners, which register shall be kept and maintained by the foundation, or its delegates, at the registered address of the foundation or at such other place as may be specified in the statute of the foundation.

(6) Every foundation established solely to achieve a stated purpose and which does not have any beneficiaries as defined in paragraph (d) of the definition "beneficial owner" in regulation 2(1) shall only be required to enter the information referred to in paragraphs (a) to (c) and (e) of such definition in a register of beneficial owners, which register shall be kept and maintained by the foundation, or its delegates, at the registered address of the foundation or at such other place as may be specified in the statute of the foundation.

(7) A foundation shall not:

(a) enter the name of a beneficial owner or any changes to the beneficial interest in the register of beneficial owners; or

(b) notify the Registrar for Legal Persons in compliance with the Second Schedule, when required upon an event taking place, unless it has obtained, as may be applicable, information on the underlying beneficial ownership and unless it has carried out the verifications required by these regulations.

(8) Subject to the provisions of regulation 4(1)(d), beneficial owners who are natural persons and whose personal data is held in the register of beneficial owners under these regulations shall be informed of such fact, together with information about their rights, and the procedures applicable for exercising those rights under the Data

Protection Act and any regulations made thereunder, by the relevant foundation within thirty (30) days of the foundation submitting such information to the Registrar for Legal Persons as required under these regulations.

(9) Unless excluded, suspended or postponed by the terms of the foundation or a beneficiary statement, any person who is a beneficial owner of a foundation, has a right of access to any information relating to himself in the register of beneficial owners held by such foundation within a reasonable period not exceeding thirty

(30) days after he a makes a request in writing to this effect to the foundation.

(10) If default is made in complying with the provisions of sub-regulations (1) or (3), as the case may be:

(a) the foundation and every administrator of the foundation who is in default shall be jointly and severally liable to a penalty, and, for every day during which the default continues, to a further penalty:

Provided that the foundation and the administrators of the foundation shall not be liable if they had exercised all due diligence to comply with the provisions of this regulation and the default was not due to any negligent act or omission on their (REGISTER OF BENEFICIAL OWNERS – FOUNDATIONS)

part; and

(b) every beneficial owner, other than the persons referred to in paragraph (a), who is in default without valid excuse shall be liable to a penalty and, for every day during which the default continues, to a further penalty.

(11) The administrators of a foundation shall retain the information in respect of its beneficial owners, including the details of the beneficial interests held in terms of these regulations for ten (10) years and this, from the date on which:

(a) the grounds for registering the beneficial ownership information have ceased to exist; or

(b) the foundation has been struck off from the Register of Legal Persons or, if the foundation is, for any reason, not registered in terms of the Second Schedule or applicable regulations, from the date on which the certified copy of the winding up resolution is delivered to the Registrar for Legal Persons in accordance with article 59 of the Second Schedule; or

(c) there is the termination of registration in case of the continuation of the foundation in another country in accordance with article 22A of the Second Schedule, whichever is the earlier.