A comparative analysis of the fiduciary duties of trustees in South Africa and Namibia

Abstract

Within the sphere of trust law a lot has transpired. South African and Namibian trust law are a mixture of English and Roman-Dutch law. In alignment of this emphasis, it is therefore generally accepted that a trust is an arrangement where there is transfer of ownership and control of trust assets from the founder to the trustees. The purpose of so doing is to ensure that the trustees’ hold and administers property for the benefit of the trust beneficiaries or in pursuance of an impersonal object. With this in mind, the concept fiduciary means someone who undertakes to act for or on behalf of another, hence the trustee office places the trustees in a fiduciary relationship with the beneficiaries, and requires the trustees’ to administer trust property with the utmost good faith. The construction of different legal words such as "trust instrument" and "trustees" serve as evidence when comparing the South African and Namibian trust law. It is almost like the Time Traveller rocket back to 1934 with the introduction of Trust Moneys Protection Act where both South Africa and Namibia are introduced to ‘…the king’s most excellent majesty the senate, and the house of assembly of the union of South Africa’. After 55 years the Trust Moneys Protection Act was repealed and in 1989 the Trust Property Control Act was enacted.