The need for legislative reform regarding the authorisation of trustees in the South African law of trusts

Abstract

According to section 6(1) of the Trust Property Control Act 57 of 1988, all trustees to whom the Act applies “shall act in that capacity only if authorized thereto in writing by the Master” of the High Court. The requirement of written authorisation has, however, not been interpreted and applied by the South African judiciary in a consistent fashion, leading to uncertainty regarding the precise ambit of the section and the consequences of non-compliance therewith. This contribution analyses these inconsistencies and concludes that legislative intervention along the lines of pre-formation contracts as provided for in both company law and the law of close corporations may provide an adequate solution to the problems faced by both the parties to the trust and the outsiders who deal with them.