You can register two types of trusts, namely the intervivos trust and the testamentary trust. Regulation tomorrow for international financial services regulatory developments. South africa has a developed trust law, with a trust institution the architecture of which is fully compatible with civilian principles. 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. South africas economic system is predominantly based on free market principles. Trusts are not favoured by the authorities, and the south african. The sources of law where the law comes from in south africa are. 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. A trust is an arrangement that allows someone to hold assets without owning them for the benefit. You can put practically any kind of asset into a trust, including cash, stocks, bonds, insurance policies, real estate, and artwork.
In south africa and internationally, trusts have long played a significant role in both. 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. Inter vivos trusts or living trusts, testamentary trusts and bewind trusts. Amended by justice laws rationalisation act 18 of 1996. Nonprofit law in south africa council on foundations. Pdf introduction the south african legal system is characterized by its mixed or hybrid nature occasioned by the coalescence of. 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 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. 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. Criminal law consolidation act 1935 south australia. Ptd, a cornerstone of modern environmental law, relates to the ownership, protection and the use of essential natural and cultural resources. Reference to trust property control act or case law 1.
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. 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. In a construction context this is important as there are different rights created by what is known as the law of property. Co trusteeship and the joint action rrule in south afr. The bill of rights is the cornerstone of south africa s constitutional, multi. The rule derives from the nature of the trustees joint ownership of the trust property. Although trust law is complex and establishing a trust requires the services of an experienced attorney, mastering the basics isnt hard. Firstly, to identify those areas of south african trust law that are not currently. Justice laws rationalisation act 18 of 1996 regulations under this act. Pdf jurisprudential milestones in the development of trust law in. 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.
In the rest of this article, we will compare delawares trust laws to those of alaska, nevada, new hampshire, and south dakota. In terms of south african law, a minor child may not inherit. The rules of south african trust law are a mixture of english, romandutch and south african law. 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. 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. 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. Global workplace insider for employment and labor law issues. This book meets the demand for a text that explains the basic principles of south african trust law. Financial institutions legal snapshot south african banking, finance and insurance law knowhow financial services. 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. An inter vivos trust can be created by a unilateral declaration of oneself as. A trust can be established for private benefit or for a charitable purpose.
The rules of south african trust law are a mixture of english, romandutch and. This way of speaking about the trust omits an important dimension. Types of trust south african law recognises three types of trust ownership trust. Trusts in south africa, there are basically three types. Trust property control act 57 of 1988 south african government. To determine whether a trust qualifies as a charitable trust under south african law, a grantmaker must look to the trust. The building was built in 2005 and the present value is about r4 million.
The constitution statute law common law customary law court decisions. Duty to act with care, diligence and skill section 9 2. Trust property control act south african government. The reception of the trust and the development of trust law in south africa. Add to enquiry annual survey of south african law 2017. Sep 19, 2008 trust law and practice is a subscription based product including both the printed looseleaf and lexismobile publications. Further, the principle of actor sequitur forum rei applies in south african law such that the party giving. Trusts in south africa are governed under the trust properties control act and common law. Pdf introduction the south african legal system is characterized by its.
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. Mar 25, 20 south africa has a developed and regulated competition regime based on best international practice. Rudyard kipling, the elephants child 1 introduction the past decade has borne witness to the transformation of south africa s natural. Trusts are not favoured by the authorities, and the south african revenue service sars and courts are increasingly scrutinising them. My three brothers are members of a close corporation cc that owns a building with residential and commercial tenants. This is the most common form of trust and is also known as an ordinary trust.
A trust is a legal entity that holds assets for the benefit of another. 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. The rule derives from the nature of the trustees joint ownership of the trust. Moving assets to a family trust south africa netto invest. When to use trusts in south africa find an attorney. A testamentary trust is particularly useful for looking after dependents who lack the capacity, by law or otherwise, to receive an inheritance. In order to determine whether a trust qualifies as a charitable trust under south african law, a grantmaker must look to the trust deed. 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.
Societies act, 1986 act 82 of 1986 court means the provincial or local division of the supreme court of south africa having jurisdiction. 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. 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. 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. However, an inter vivos trust is not suitable for every individual or family. This accessible, practical guide simplifies the complexity of trust law, and focuses where necessary, on the technical aspects thereof. 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. To assist with the comparison, we have prepared the following appendixes. 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.
An overview of the types of trusts under south african law. Introduction the law of property in its widest sense deals with all assets that could form part of a persons estate. Trusts in south africa, there are basically three types of trusts. 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. The competition act of 1998 fundamentally reformed the countrys competition legislation. 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. 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. Recent developments in south africa 2015 journal of civil law studies 654 at 696 and 697. South african competition law home brand south africa. General information on trusts the rules of south african trust law are a mixture of english, romandutch and south african law. Annually, married south african couples can transfer up to r8 million offshore an.
This office, however, continues to receive requests from eo examination and. Accordingly, the guide contains considerations applicable to fraud and theft in the specific circumstances of engagements on attorneys. Readers are advised to obtain specialist advice should they wish to form a trust. Importance of adhering to the basic trust idea in the. 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. Appendixaacomparison of thealaska, delaware, nevada, new hampshire, and south dakota trust infrastructures. 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. Fundamentals of south african trust law lexisnexis sa.
The master of the high court the master is not the adjudicator in trust matters but is merely a record keeping office. Administrative appeals tribunal act 1975 australia. I need advice on whether moving assets to a family trust is desirable in the following situation. 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. 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. The courts of south africa adjudicate on trust matters. 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. 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. The further purpose is to illustrate how deviation. Psm 8 basic principles of property law in sa 6 of 50 1. Importance of adhering to the basic trust idea in the formation and administration of trusts.
Amends attorneys admission amendment and legal practitioners fidelity fund act 19 of 1941. 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. Trusts are an often talked about but are often misunderstood legal instruments in our law. It is imperative that the form and governance of your trust is above reproach. Trustlaw trustlaw is the thomson reuters foundations global pro bono legal programme.
All decisions and actions taken by the trustees must be made with reference to the trust deed and the tpca. Chapter 2 of the constitution contains the bill of rights. Doing business in south africa cliffe dekker hofmeyr. Introduction we are accustomed to think of the trust as a branch of property law. Basically, its like a container that holds money or property for somebody else. Health law pulse for leading insight on legal developments in the healthcare industry. 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. However, as in most developed economies, competition is controlled. 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. This article will discuss the types of trusts recognized by south african law, as well as the circumstances in which each is appropriate.
D in the faculty of law, university of the western cape. Certain documents deemed to be trust instruments 2. The constitution the constitution is the supreme highest law of south africa. 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. Nonprofit trusts trusts in south africa are governed under the trust properties control act and common law. Updates for 12 months print and mobile are included in the price. Co trusteeship and the joint action rrule in south afr ican. 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. Since the settlor is dead when the testamentary trust becomes effective, the testamentary trust is an irrevocable trust. Their names are what and why and when and how and where and who. The south african council for the quantity surveying profession sacqsp psm 8 basic principles of property law in sa 3 of 50 6. These rules have been approved by the chief justice of south africa in consultation with the judges president of the gauteng and north west divisions of the high court in terms of section 742 of act no.