An analysis of the historical development of the trust in South Africa indicates
that the trust has formed a part of South African jurisprudence for almost two
centuries and, as such, has become a vibrant, dynamic and highly versatile
institution in both commercial and legal practice.
Initial recognition of the trust was occasioned chiefly by piecemeal (and
fragmented) pre-Union legislation and case law. After 1910 the existence of
the trust was confirmed by the Appellate Division â at that time the highest
court in South Africa â and uniform legislation become applicable throughout
the four provinces of the newly-established Union. The 1913 Administration
of Estates Act was the first post-Union Act to apply to the law of trusts. This
Act however only applied to the testamentary trust, but other legislation (such
as the Trust Moneys Protection Act of 1934) eventually followed which applied
to both testamentary and inter vivos trusts. The promulgation of the Trust
Property Control Act 57 of 1988 is, however, widely regarded as being the
most important contribution by the Legislature to the South African law of
trusts.
Section 6(1) of the 1988 Act introduced the requirement of written
authorization of all trustees before they could act in that capacity. However,
despite the seemingly clear and unambiguous wording adopted by the
Legislature, the Courts have not interpreted and applied the section in a
uniform fashion, leading to great uncertainty especially as far as the effect of
non-compliance with section 6(1) is concerned.
This dissertation attempts, by way of the legal historical method of research,
to analyse the reported cases dealing with section 6(1), to compare the
development of the requirement of written authorization with analogous
requirements posed by previous legislation, and, as a consequence, to determine the true purpose of and rationale behind the insertion of the
section.
In order to combat the current uncertain legal position, three possible
solutions are suggested, namely common law mechanisms, legislative
intervention, and the correct interpretation of section 6(1).
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-07302007-141814 |
| Date | 30 July 2007 |
| Creators | Smith, Bradley Shaun |
| Contributors | Prof JH van Schalkwyk, Prof WM van der Westhuizen |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-07302007-141814/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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