Page 35 - Nexia SAB&T Trust Guide 2022

SPECIFIC LEGISLATION AND COMMON LAW

■ Common law – this is the body of law developed by the South African judges
and courts. The defining characteristic of common law is that it arises as
legal precedent that can be applied to similar situations.
■ The Financial Institutions (Protection of Funds) Act (no. 28 of 2001) –
intends to provide for, and consolidate the laws relating to the investment,
safe custody and administration of funds and trust property by financial
institutions.
■ The Trust Property Control Act 9 (no.57 of 1988) – its purpose is to
regulate the control of trust property, and to provide for matters relating to it.
Much of the Act is aimed at establishing firmer control over trustees and their
administration of the trust.
Although the text of the Act is not divided into chapters, the following aspects
are covered:
◆ Definition clause.
◆ Documents deemed to be trust instruments.
◆ The role of the High Court in respect of trusts and trustees.
◆ The role of the Master of the High Court in respect of trusts and trustees.
◆ The duties of trustees.
◆ The powers of beneficiaries or interested parties.
■ Income Tax Act (no.58 of 1962) – defines a trust as “any trust fund
consisting of cash or other assets which are administered and controlled by a
person acting in a fiduciary capacity, where such person is appointed under a
deed of trust or by agreement or under the Will of a deceased person.”

The Income Tax Act views a trust as a “person” for tax purposes, and
accordingly all trusts must be registered with the SARS. It is the duty
of the trustees or representative taxpayer(s) of the trust, to register the
trust for income tax purposes.

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