Page 32 - Nexia SAB&T Trust Guide 2022

A co-trustee who was not involved with a breach of trust may nevertheless be
liable for any wrongful action of another trustee if the “innocent” trustee’s
ignorance and/or inactivity is causally connected to the damage incurred. For
example: where the “innocent trustee” is aware of a breach of trust by co-trustees
but does not report it, or where the “innocent trustee” improperly allows trust funds
to remain in the sole control of co-trustees.
Section 19 of the Trust Property Control Act states that if any trustee fails to comply
with a request by the Master in terms of Section 16, or to perform any duty imposed
upon him by the trust instrument or by law, the Master or any person having an
interest in the trust property, may apply to the court for an order directing the trustee
to comply with such request or to perform such duty. Section 16 refers to the situation
where the Master requests in writing that a trustee shall account to the Master, to his
satisfaction, and in accordance with the Master’s requirements, for his administration
and disposal of trust property and to deliver to the Master any book, record, account
or document relating to his administration or disposal of the trust property, and shall,
to the best of his ability, answer honestly and truthfully any question put to him by
the Master in connection with the administration and disposal of the trust property.
The Master may, if he deems it necessary, cause an investigation to be carried out
by a fit and proper person appointed by him into the trustee’s administration and
disposal of trust property, and shall make such order as he deems fit in connection
with the costs of the investigation.
In addition, any person who feels aggrieved by an authorisation, appointment or
removal of a trustee by the Master or by any decision, order or direction of the
Master made or issued under the Trust Property Control 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.

Reporting of Irregularities by an Auditor of the trust
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 a person shall, if in his opinion
it is a material irregularity, report it in writing to the trustee/s, 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/s, that person shall report it in writing to
the Master of the High Court.
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