Introduction from a south african perspective the namibian trust law is a bit like michael j foxs movie back to the future to understand the future of the namibian trust law one has to move a bit back in history the previous trust legislation of south africa namely, the trust moneys protection act, 34. A thesis submitted in fulfilment of the requirements for the degree doctor legum ll. The south african council for the quantity surveying profession sacqsp psm 8 basic principles of property law in sa 3 of 50 6. A trust is a legal entity that holds assets for the benefit of another. The building was built in 2005 and the present value is about r4 million. Accordingly, the guide contains considerations applicable to fraud and theft in the specific circumstances of engagements on attorneys. Ptd, a cornerstone of modern environmental law, relates to the ownership, protection and the use of essential natural and cultural resources. Global workplace insider for employment and labor law issues. Importance of adhering to the basic trust idea in the. In the rest of this article, we will compare delawares trust laws to those of alaska, nevada, new hampshire, and south dakota. South african competition law home brand south africa. The assertion that the public trust doctrine ptd applied to south africas water law only by dint of the constitution and to equate it to expropriation strikes me as very odd. A testamentary trust is particularly useful for looking after dependents who lack the capacity, by law or otherwise, to receive an inheritance. The rules of south african trust law are a mixture of english, romandutch and south african law.
The law of trusts is designed for use as a supplementary text for a course on wills and trusts and the primary text in a seminar or course exploring the law of trusts. Co trusteeship and the joint action rrule in south afr ican. Nonprofit trusts trusts in south africa are governed under the trust properties control act and common law. However, an inter vivos trust is not suitable for every individual or family.
Introduction we are accustomed to think of the trust as a branch of property law. The act was repealed in south africa by the trust moneys control act 57 of 1988rsa gg 157 which was not made expressly applicable to swa. This being the case, it is settled law that a trustee must conduct trust administration with the utmost good faith 4 and in the best interests of the trust beneficiaries 5. Trust moneys protection act 34 of 1934 sa sa gg 2201 came into force in south west africa on 20 june 1975, when section 8a of the act was inserted by act 57 of 1975. The reception of the trust and the development of trust law in south africa. An overview of the types of trusts under south african law. You can register two types of trusts, namely the intervivos trust and the testamentary trust. Although trust law is complex and establishing a trust requires the services of an experienced attorney, mastering the basics isnt hard. Introduction 9 the last will and testament 9 trusts 18 donations 28 matrimonial property regimes 31 assurance policies 35 foreign assets of a south african resident 37 business succession planning 39 estate duty 43 a general 43 b property 43 c deemed property 44 d deductions. Add to enquiry annual survey of south african law 2017. The further purpose is to illustrate how deviation. To assist with the comparison, we have prepared the following appendixes.
Taking security in south africa a comparative guide for investors provides an overview of the types of assets over which security can be taken in south africa, the different types of security, as well as the related procedures. Pdf introduction the south african legal system is characterized by its. D in the faculty of law, university of the western cape. The competition act of 1998 fundamentally reformed the countrys competition legislation. Trusts in south africa, there are basically three types. Annually, married south african couples can transfer up to r8 million offshore an.
Updates for 12 months print and mobile are included in the price. We connect highimpact ngos and social enterprises working to create social and environmental change with the best law firms and corporate legal teams to provide them with free legal assistance. General information on trusts the rules of south african trust law are a mixture of english, romandutch and south african law. When to use trusts in south africa find an attorney. Trusts are an often talked about but are often misunderstood legal instruments in our law. This section contains free ebooks and guides on law books, some of the resources in this section can be viewed online and some of them can be downloaded. Apr 18, 2016 the trust cannot be sued as it is not recognised as a legal person in south africa, it is the trustees in their official capacity who can be sued. Co trusteeship and the joint action rrule in south afr. In order to determine whether a trust qualifies as a charitable trust under south african law, a grantmaker must look to the trust deed.
It is imperative that the form and governance of your trust is above reproach. The restatement second of trusts defines the trust as a fiduciary relationship with respect to property, and the codes2 and treatises3 say similar things. Certain documents deemed to be trust instruments 2. In laymans terms a trust can be described as a legal arrangement or instrument which is created to hold and manage assets for the benefit of certain individuals or entities. Offshore trusts in terms of current tax laws, south african tax residents with offshore discretionary trust structures can be subject to south african tax in terms of similar attribution and beneficiary charges, and in particular on amounts. This office, however, continues to receive requests from eo examination and. An overview chapter 1 p5 the constitution of the republic of south africa, 1996 is the supreme law of the republic, and any law or conduct inconsistent with it is invalid. This accessible, practical guide simplifies the complexity of trust law, and focuses where necessary, on the technical aspects thereof. Testamentary trusts are usually created to hold assets on behalf of minor children, since minor children cannot in terms of south african law inherit anything in the absence of a trust, assets from the deceased estate left to minor children are sold, and the money. As a point of departure, in terms of the trust property control act 57 of 1988 hereinafter referred to as the act, all trusts must and will have the same basic. Since the settlor is dead when the testamentary trust becomes effective, the testamentary trust is an irrevocable trust.
The main statute that governs south african trust law is the trust property control act of 1988, which regulates certain administrative aspects relating to trusts. Trusts a basic guide newsletter 32012 this document is intended to be a basic guide on trusts as a form of estate planning. All laws and state actions must be in line with the constitution. The constitution statute law common law customary law court decisions. The sources of law where the law comes from in south africa are. Administrative appeals tribunal act 1975 australia.
In south africa, business trusts are governed by common law and the trust property control act, 57 of 1988, and are registered with the master of the high court. Financial institutions legal snapshot south african banking, finance and insurance law knowhow financial services. All decisions and actions taken by the trustees must be made with reference to the trust deed and the tpca. Mar 25, 20 south africa has a developed and regulated competition regime based on best international practice. Amended by justice laws rationalisation act 18 of 1996. Introduction the law of property in its widest sense deals with all assets that could form part of a persons estate. Regulation tomorrow for international financial services regulatory developments. I need advice on whether moving assets to a family trust is desirable in the following situation. Moving assets to a family trust south africa netto invest.
Health law pulse for leading insight on legal developments in the healthcare industry. In the quest to demystify the incorporation of the concept of public trusteeship in south africa, this article, as a first tentative step, proposes focusing solely on the public trust doctrine as it functions in american jurisprudence. Psm 8 basic principles of property law in sa 6 of 50 1. The rules of south african trust law are a mixture of english, romandutch and. Mauritius trusts south african perspective the republic of south africa rsa has been enjoying rapid growth and recent changes to exchange controls in the rsa have made forming an offshore trust much more attractive and costeffective. Societies act, 1986 act 82 of 1986 court means the provincial or local division of the supreme court of south africa having jurisdiction. South africas economic system is predominantly based on free market principles. Readers are advised to obtain specialist advice should they wish to form a trust. Doing business in south africa cliffe dekker hofmeyr. Trust property control act 57 of 1988 south african government. Firstly, to identify those areas of south african trust law that are not currently. Fundamentals of south african trust law lexisnexis sa. Pdf introduction the south african legal system is characterized by its mixed or hybrid nature occasioned by the coalescence of.
A trust is an arrangement that allows someone to hold assets without owning them for the benefit. The trustees for the time being of the trust, whether originally or subsequently appointed, shall not be required to furnish security to the master of the high court of south africa or any other official under the trust property control act 57 of 1988 or any other legislation which may now be or which may hereafter become of force and effect. Personal autonomy, private ownership and freedom of. Beneficiaries may sue the trustee to enforce the provisions of the trust eg in order to obtain payments of income or delivery of property to which they are entitled in terms of the trust or simply to keep the trust fund intact even though. This is the most common form of trust and is also known as an ordinary trust.
The trust property control act 57 of 1998 contains a rather cumbersome definition for a trust, but the short version is that a trust is a structure to which. This topic contains news and insights which examine legislation and case law concerning intestate and testate succession, wills, estate planning, inter vivos and mortis causa trusts, and the taxation of trusts. Testamentary trusts are created at the winding up of a deceased estate following a specific stipulation in the deceased persons will that a trust must be set up. My three brothers are members of a close corporation cc that owns a building with residential and commercial tenants. Sep 19, 2008 trust law and practice is a subscription based product including both the printed looseleaf and lexismobile publications. The master of the high court the master is not the adjudicator in trust matters but is merely a record keeping office. Nonprofit law in south africa council on foundations. Trusts in south africa, there are basically three types of trusts. Further, the principle of actor sequitur forum rei applies in south african law such that the party giving. In south africa and internationally, trusts have long played a significant role in both.
The south african law commission, referred to by the margo commission, was mandated to investigate the south african law of trusts and recommended in its working paper on trust law which was released in 1983 that there was no need to comment on establishing trust law principles and that the south african trust law should not be codified. This book meets the demand for a text that explains the basic principles of south african trust law. This article will discuss the types of trusts recognized by south african law, as well as the circumstances in which each is appropriate. Duty to act with care, diligence and skill section 9 2. The following preindependence south african amendment was applicable to swa general law amendment act 57 of 1975 rsa gg 4670, which inserted section 8a making the act applicable to swa. Trustlaw trustlaw is the thomson reuters foundations global pro bono legal programme. Fundamentals of sa trust law provides a concise, yet comprehensive, exposition of the principles underlying south african trust law, but also attends to many issues pertinent to the trust in legal and commercial practice. The rule derives from the nature of the trustees joint ownership of the trust property. Trusts are not favoured by the authorities, and the south african revenue service sars and courts are increasingly scrutinising them. In terms of south african law, a minor child may not inherit.
The constitution the constitution is the supreme highest law of south africa. Trusts in south africa are governed under the trust properties control act and common law. Pdf jurisprudential milestones in the development of trust law in. An inter vivos trust can be created by a unilateral declaration of oneself as. In terms of section 8 of the trust property control act, where a person who has been validly appointed outside south africa as a trustee of a trust registered in a foreign jurisdiction wishes to transact in respect of assets within south africa, the provisions of the said act apply and he cannot so transact until he has been authorised to do so by. Importance of adhering to the basic trust idea in the formation and administration of trusts.
The courts of south africa adjudicate on trust matters. To determine whether a trust qualifies as a charitable trust under south african law, a grantmaker must look to the trust deed. Their names are what and why and when and how and where and who. This way of speaking about the trust omits an important dimension. Trusts are not favoured by the authorities, and the south african.
Appendixaacomparison of thealaska, delaware, nevada, new hampshire, and south dakota trust infrastructures. Justice laws rationalisation act 18 of 1996 regulations under this act. Criminal law consolidation act 1935 south australia. While south africa has its eyes focused on the outcome of the 2018 budget, its important to remember that 28 february is also the end of the tax year for all individuals, trusts and many. Rudyard kipling, the elephants child 1 introduction the past decade has borne witness to the transformation of south africa s natural. In south africa, in addition to the traditional living trusts and will trusts there is a bewind trust inherited from the romandutch bewind administered by a bewindhebber in which the beneficiaries own the trust assets while the trustee administers the trust, although this is regarded by modern dutch law as not actually a trust. While our courts have played the biggest role in developing uniquely south african trust law principles, the legislature has also contributed to the shaping of the trust institution. Trust property control act south african government. Created when the trust founder transfers ownership of assets or property to a trustees to be held for the benefit of defined or determinable beneficiaries of the trust.
This page contains listing of free law books online textbooks and tutorials they are downnloadable or for viewing online in the html pdf zip chm or rar file formats. Reference to trust property control act or case law 1. Basically, its like a container that holds money or property for somebody else. The bill of rights is the cornerstone of south africa s constitutional, multi. Types of trust south african law recognises three types of trust ownership trust. Overview purpose the service published a lengthy and sophisticated discussion of trusts, with particular detail on splitinterest trusts, in trust primer, 2001 eo cpe 79. However, as in most developed economies, competition is controlled. In a construction context this is important as there are different rights created by what is known as the law of property. To determine whether a trust qualifies as a charitable trust under south african law, a grantmaker must look to the trust. Chapter 2 of the constitution contains the bill of rights. Recent developments in south africa 2015 journal of civil law studies 654 at 696 and 697. Academic commentators at the time correctly concluded that this finding by implication extended to accrual claims and thus endorsed the approach in the mm case see f du toit south africa trusts and the patrimonial consequences of divorce.
Registration of trusts a trust is a legal arrangement whereby control over property is transferred to a person or organisation the trustee for the benefit of someone else the beneficiary. A trust can be established for private benefit or for a charitable purpose. The main focus of this book is on that type of trust. Amends attorneys admission amendment and legal practitioners fidelity fund act 19 of 1941. Inter vivos trusts or living trusts, testamentary trusts and bewind trusts. You can put practically any kind of asset into a trust, including cash, stocks, bonds, insurance policies, real estate, and artwork. The rule derives from the nature of the trustees joint ownership of the trust. South africa has a developed trust law, with a trust institution the architecture of which is fully compatible with civilian principles.922 485 1638 931 889 213 748 673 761 227 1608 1153 579 521 1071 383 903 352 517 562 288 853 105 1325 1257 8 794 771 664 900 323