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- Is amended by Justice Laws Rationalisation Act, 1996
- Is amended by General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022
- Is commenced by Trust Property Control Act, 1988: Commencement
South Africa
Trust Property Control Act, 1988
Act 57 of 1988
- Published in Government Gazette 11357 on 17 June 1988
- Assented to on 1 June 1988
- Commenced on 31 March 1989 by Trust Property Control Act, 1988: Commencement
- [This is the version of this document from 1 April 2023.]
- [Amended by Justice Laws Rationalisation Act, 1996 (Act 18 of 1996) on 1 April 1997]
- [Amended by General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act 22 of 2022) on 1 April 2023]
1. Definitions
In this Act, unless the context otherwise indicates—"accountable institution" has the meaning defined in section 1(1) of and Schedule 1 to the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001);[definition of "accountable institution" inserted by section 1(a) of Act 22 of 2022]"banking institution" means an institution registered otherwise than provisionally as a bank in terms of the Banks Act, 1965 (Act No. 23 of 1965);"beneficial owner", in respect of the provisions of a trust instrument, means—(a)a natural person who directly or indirectly ultimately owns the relevant trust property;(b)a natural person who exercises effective control of the administration of the trust arrangements that are established pursuant to a trust instrument;(c)(i)each founder of the trust; or(ii)if a founder of the trust is a legal person, a person acting on behalf of a partnership or in pursuance of the provisions of a trust instrument, the natural person who directly or indirectly ultimately owns or exercises effective control of that legal person or partnership or the relevant trust property or trust arrangements pursuant to that trust instrument;(d)(i)each trustee of the trust; or(ii)if a trustee of the trust is a legal person or a person acting on behalf of a partnership, the natural person who directly or indirectly ultimately owns or exercises effective control of that legal person or partnership; and(e)(i)each beneficiary referred to by name in the trust instrument or other founding instrument in terms of which the trust is created; or(ii)if a beneficiary referred to by name in the trust instrument is a legal person, a partnership or a person acting on behalf of a partnership or a person acting in pursuance of the provisions of a trust instrument, the natural person who directly or indirectly ultimately owns or exercises effective control of that legal person or partnership or the relevant trust property or trust arrangements pursuant to that trust instrument;[definition of "beneficial owner" inserted by section 1(b) of Act 22 of 2022]"building society" means a mutual building society registered finally as a mutual building society in terms of the Mutual Building Societies Act, 1965 (Act No. 24 of 1965), or a building society registered finally as a building society in terms of the Building Societies Act, 1986 (Act No. 82 of 1986);"court" means the provincial or local division of the Supreme Court of South Africa having jurisdiction;"financial institution" means a financial institution as defined in the Financial Institutions (Investment of Funds) Act, 1984 (Act No. 39 of 1984);"Master", in relation to any matter, means the Master, Deputy Master or Assistant Master of the Supreme Court appointed under section 2 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), who under section 3 of this Act has jurisdiction in respect of the matter concerned;"trust" means the arrangement through which the ownership in property of one person is by virtue of a trust instrument made over or bequeathed—(a)to another person, the trustee, in whole or in part, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument; or(b)to the beneficiaries designated in the trust instrument, which property is placed under the control of another person, the trustee, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument,but does not include the case where the property of another is to be administered by any person as executor, tutor or curator in terms of the provisions of the Administration of Estates Act, 1965 (Act No. 66 of 1965);"trustee" means any person (including the founder of a trust) who acts as trustee by virtue of an authorization under section 6 and includes any person whose appointment as trustee is already of force and effect at the commencement of this Act;"trust instrument" means a written agreement or a testamentary writing or a court order according to which a trust was created;"trust property" or "property" means movable or immovable property, and includes contingent interests in property, which in accordance with the provisions of a trust instrument are to be administered or disposed of by a trustee.2. Certain documents deemed to be trust instruments
If a document represents the reduction to writing of an oral agreement by which a trust was created or varied, such document shall for the purposes of this Act be deemed to be a trust instrument.3. Jurisdiction of Masters
4. Lodgement of trust instrument
5. Notification of address
A person whose appointment as trustee comes into effect after the commencement of this Act, shall furnish the Master with an address for the service upon him of notices and process and shall, in case of change of address, within 14 days notify the Master by registered post of the new address.6. Authorization of trustee and security
7. Appointment of trustee and co-trustee by Master
8. Foreign trustees
When a person who was appointed outside the Republic as trustee has to administer or dispose of trust property in the Republic, the provisions of this Act shall apply to such trustee in respect of such trust property and such person shall act in that capacity only if authorized thereto in writing by the Master under section 6.[section 8 substituted by section 3 of Act 22 of 2022]9. Care, diligence and skill required of trustee
10. Trust account
11. Registration and identification of trust property
11A. Beneficial ownership
12. Separate position of trust property
Trust property shall not form part of the personal estate of the trustee except in so far as he as trust beneficiary is entitled to the trust property.13. Power of court to vary trust provisions
If a trust instrument contains any provision which brings about consequences which in the opinion of the court the founder of a trust did not contemplate or foresee and which—14. Variation of trust instrument
Whenever a trust beneficiary under tutorship or curatorship becomes entitled to a benefit in terms of a trust instrument, the tutor or curator of such a beneficiary may on behalf of the beneficiary agree to the amendment of the provisions of a trust instrument, provided such amendment is to the benefit of the beneficiary.15. Report of irregularities
If an irregularity in connection with the administration of a trust comes to the notice of a person who audits the accounts of a trust, such person shall, if in his opinion it is a material irregularity, report it in writing to the trustee, and if such irregularity is not rectified to the satisfaction of such person within one month as from the date upon which it was reported to the trustee, that person shall report it in writing to the Master.16. Master may call upon trustee to account
17. Custody of documents
A trustee shall not without the written consent of the Master destroy any document which serves as proof of the investment, safe custody, control, administration, alienation or distribution of trust property before the expiry of a period of five years from the termination of a trust.18. Copies of documents
Subject to the provisions of section 5(2) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), regarding the documents in connection with the estate of a deceased person, the Master shall upon written request and payment of the prescribed fee furnish a certified copy of any document under his control relating to trust property to a trustee, his surety or his representative or any other person who in the opinion of the Master has sufficient interest in such document.19. Failure by trustee to account or perform duties
20. Removal of trustee
21. Resignation by trustee
Whether or not the trust instrument provides for the trustee’s resignation, the trustee may resign by notice in writing to the Master and the ascertained beneficiaries who have legal capacity, or to the tutors or curators of the beneficiaries of the trust under tutorship or curatorship.22. Remuneration of trustee
A trustee shall in respect of the execution of his official duties be entitled to such remuneration as provided for in the trust instrument or, where no such provision is made, to a reasonable remuneration, which shall in the event of a dispute be fixed by the Master.23. Access to court
Any person who feels aggrieved by an authorization, appointment or removal of a trustee by the Master or by any decision, order or direction of the Master made or issued under this Act, may apply to the court for relief, and the court shall have the power to consider the merits of any such matter, to take evidence and to make any order it deems fit.24. Regulations
The Minister of Justice may make regulations regarding any matter which in terms of this Act is required or permitted to be prescribed.25. Application of Act
This Act shall not apply to a trust which has been exempted by any other Act from the application of the Trust Moneys Protection Act, 1934 (Act No. 34 of 1934), or to a scheme in terms of the Participation Bonds Act, 1981 (Act No. 55 of 1981).26. Amendment or repeal of laws, and savings
27. Short title and commencement
This Act shall be called the Trust Property Control Act, 1988, and shall come into operation on a date to be fixed by the State President by proclamation in the Gazette.History of this document
01 April 2023 this version
01 April 1997
31 March 1989
Commenced by
Trust Property Control Act, 1988: Commencement
17 June 1988
01 June 1988
Assented to
Subsidiary legislation
Title | Numbered title |
---|---|
Trust Property Control Act, 1988: Commencement | Proclamation R35 of 1989 |
Trust Property Control Act: Regulations: Amendment | Government Notice R1056 of 2009 |
Trust Property Control Act: Regulations: Amendment | Government Notice 1162 of 2017 |
Trust Property Control Act: Regulations: Amendment | Government Notice R3240 of 2023 |
Trust Property Control Act: Regulations: Amendment | Government Notice R4510 of 2024 |
Cited documents 10
Legislation 10
- Building Societies Act, 1986
- Companies Act, 2008
- Competition Act, 1998
- Financial Intelligence Centre Act, 2001
- Financial Markets Act, 2012
- Insolvency Act, 1936
- Mental Health Care Act, 2002
- Prevention and Combating of Corrupt Activities Act, 2004
- Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004
- Tax Administration Act, 2011
Documents citing this one 280
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- Martin obo N v Road Accident Fund (83732/15) [2017] ZAGPPHC 20 (22 September 2017)
- Masithela and Others v Master of High Court Pretoria and Others (60899/2021) [2024] ZAGPPHC 286 (19 March 2024)
- Master of High Court v Pretoria Society of Advocates and Others; In Re: Matters involving report and addendum of Master of High Court ito section 96(2) of Administration of Estates Act 66 of 1965; In re: Van Rooyen NO obo Ntzokhe v Road Accident Fund; Raphulu v ROad Accident Fund; Rauenheimer obo Brian v Road Accident Fund; Segoba obo Sekwane and Sekwane v Road Accident Fund; Wentzel v Road Accident Fund (17258; 28304; 35182; 40258/16; 44200) [2022] ZAGPPHC 810 (20 May 2022)
- Master of High Court v Pretoria Society of Advocates and Others; In re: Van Rooyen NO obo Ntzokhe v Road Accident Fund; In re: Language NO obo Raphulu v Road Accident Fund; In re: Raubenheimer NO obo Brian v Road Accident Fund; In re: Segoba obo Sekwane and Sekwane v Road Accident Fund; In re: Wentzel v Road Accident Fund (17258/21; 28304/18; 35182/14; 35182/16; 40258/16; 44200/15) [2022] ZAGPPHC 864 (20 May 2022)
- Mathye v Absa Trust Ltd and Another (42437/2021) [2022] ZAGPPHC 1157 (1 December 2022)
- Mokhele and Another v South African Legal Practice Council ; In re: South African Legal Practice Council v Mokhele and Another (5511/2022) [2023] ZAFSHC 70 (27 March 2023)
- Montsioa and Others v eJoburg Retirement Fund and Others (43479 of 2021) [2022] ZAGPJHC 761 (11 October 2022)
- Morar NO v Akoo and Another (498/2010) [2011] ZASCA 130 (15 September 2011)
- Mthembu obo S Z v Road Accident Fund (81106/2017) [2023] ZAGPPHC 672 (9 June 2023)
- NPGS Protection and Security Services CC and Another v FirstRand Bank Ltd (314/2018) [2019] ZASCA 94 (6 June 2019)
- National African Federated Chambers of Commerce and Industry, KwaZulu-Natal and Others v NAFCOC : KwaZulu-Natal and Others (1591/20P) [2022] ZAKZPHC 202 (15 December 2022)
- Nieuwoudt NO and Another v Vrystaat Mielies (Edms) Bpk (325/2002) [2003] ZASCA 128 (28 November 2003)
- Nkotobe and Others v Bengu and Others (580/2014) [2015] ZAECBHC 12 (15 May 2015)
- Noome and Others v Botha N.O and Others (4405/2021) [2022] ZAFSHC 44 (23 May 2022)
- Nunwana and Others v Mara Trust and Others (3484/2022) [2024] ZAFSHC 93 (17 April 2024)
- P F v S F (788 of 2020) [2022] ZASCA 101 (22 June 2022)
- Parikh and Others v Road Accident Fund (46082/2018) [2022] ZAGPJHC 755 (23 September 2022)
- Parker v Forsyth N.O. and Others (1585/20) [2023] ZAGPRD 1 (29 June 2023)
- Plaatjies v Meintjies and Another (A81/2022) [2022] ZAWCHC 140 (19 September 2022)
- Potgieter v Potgieter NO and Others (629/2010) [2011] ZASCA 181 (30 September 2011)
- Price and Another v Kaplan NO and Others (44937/19) [2022] ZAGPPHC 854 (14 June 2022)
- Prinsloo and Others v S (827/2011) [2015] ZASCA 207 (4 December 2015)
- R R and Others v J R and Others (16015/2022P) [2024] ZAKZPHC 35 (22 April 2024)
- Raath v Nel (473/2011) [2012] ZASCA 86 (31 May 2012)
- Ras NO and Others v Van der Meulen and Another (635/2009) [2010] ZASCA 163 (1 December 2010)
- S N obo S M v MEC for Health and Social Development of the Gauteng Provincial Government (Y69426/2019) [2023] ZAGPPHC 921 (16 August 2023)
- Sami Tissue Products (Pty) Ltd v Mfuleni Local Municipality and Another (18020/2022) [2022] ZAGPJHC 562 (22 August 2022)
- Schoonbee NO and Others v Wohlkinger and Others (2022/23317) [2023] ZAGPJHC 1402 (21 November 2023)
- Shepstone & Wylie Attorneys v Abraham Johannes De Witt NNO and Others (1270/2021) [2023] ZASCA 74 (26 May 2023)
- Silinda NO and Others v Makhubela and Others (57206/10) [2017] ZAGPPHC 99 (16 November 2017)
- Siyaduma and Others v Minister of Public Works and Others (26921/18) [2018] ZAGPPHC 492 (7 May 2018)
- South African Legal Council v Matsi and Another (078312/2023) [2023] ZAGPPHC 1244 (30 August 2023)
- South African Legal Practice Council v Harper and Another (51846/21) [2021] ZAGPJHC 435 (21 December 2021)
- South African Legal Practice Council v Masingi (2023-077988) [2023] ZAGPPHC 1060 (13 September 2023)
- South African Legal Practice Council v Mokoana (32103/20) [2023] ZAGPPHC 139 (9 March 2023)
- South African Legal Practice Council v Teffo (10991/21) [2022] ZAGPPHC 629 (16 September 2022)
- Standard Bank of South Africa Limited v Swanepoel NO (20062/2014) [2015] ZASCA 71 (22 May 2015)
- The Citizen 1978 (Pty) Ltd and Others v McBride [2011] ZACC 11 (8 April 2011)
- Theodorellis v Theodorellis NNO and Others (1916/2023) [2023] ZAFSHC 107 (2 June 2023)
- Toise v Trustees for the Time Being of the Blaauwkrantz Employees Trust and Others (1883/2020) [2023] ZAECGHC 17 (7 March 2023)
- Tshaka NO and Others v Standard Bank of South Africa Limited and Another (141/2019) [2020] ZASCA 73 (25 June 2020)
- Tshalet v Mosungwa and Another; In re: Tshalite (11881/21) [2022] ZAGPJHC 254 (3 May 2022)
- Van As NO and Others v Jacobs NO and Others (54121/2019) [2024] ZAGPPHC 300 (27 March 2024)
- Van Graan N.N.O. and Others v Waisman N.O. and Others (2509/2022) [2023] ZAECPEHC 14 (21 February 2023)
- Van Vuuren v Road Accident Fund (179 of 2018) [2022] ZAGPJHC 648 (9 September 2022)
- Van der Merwe N.O. v Road Accident Fund (2019/43653) [2023] ZAGPJHC 139 (27 February 2023)
- Venter N.O. and Another v Astfin (SA) (Pty) Ltd N.N.O. and Others (2021/25209) [2023] ZAGPJHC 1015 (8 September 2023)
- Vlok NO and Another v Botha and Others (30836/16) [2017] ZAGPPHC 60 (14 December 2017)
- Vorster N.O. v Buthelezi N.N.O. and Others (10754/2022P) [2023] ZAKZPHC 113 (13 October 2023)
- WT and Others v KT (933/2013) [2015] ZASCA 9 (13 March 2015)
- Wasserman Bate Trust and Another v Premier, Free State Provincial Government (384/2003) [2004] ZASCA 88 (29 September 2004)
- Yarram Trading CC t/a Tijuana Spur v Absa Bank Ltd (625/2005) [2006] ZASCA 132 (30 November 2006)
- Zoviflo (Pty) Ltd v Prokas and Others (010253/2023) [2023] ZAGPJHC 920 (15 August 2023)
Law Reform Report 1
Legislation 11
- Collective Investment Schemes Control Act, 2002
- Consumer Protection Act, 2008
- Financial Advisory and Intermediary Services Act, 2002
- Financial Institutions (Protection of Funds) Act, 2001
- Financial Intelligence Centre Act, 2001
- Financial Sector Regulation Act, 2017
- KwaZulu-Natal Zulu Royal House Trust Act, 2018
- Money Laundering Control Regulations, 2002
- Pension Funds Act, 1956
- Regulations Relating to the Financial Governance of Health Facility Boards and Committees, 2017
- Rules of the Post Office Retirement Fund, 2005