Fiduciary law in South Africa

A good time to come of age

Abstract

Fiduciary law as a separate legal discipline has not been under the spotlight within a South African context. As it is often limited to its association with trustees and company directors, fiduciary law has been under-analysed and not recognized as a distinctive body of law. In this article, the position of fiduciary law is regarded as within the broader context of the private-law landscape, considering both contractual and relationship theories. Its application in a trust-law context is used to illustrate the practical value of fiduciary law. The potential role of public policy as well as the impact of the mixed-law tradition are discussed, emphasizing the importance of the responsible development of fiduciary law. This development relies on a sound theoretical understanding of its objectives and intended results. Additionally, it necessitates the identification and application of an officially recognized normative assessment for determining the parameters of the fiduciary relationship. A few potential common factors for determining the nature, origin, and reach, of fiduciary law are identified, with the intention of stimulating the debate and further research. These factors include the purpose of the fiduciary concept, the undertaking by the functionary, the legal source of the individual’s appointment, and aspects such as independence, discretion, duties, capacity, and assessment.