Die bestaansreg van 'n besigheidstrust

Abstract

The business trust has become a popular vehicle for conducting business in South Africa. In order to gain legal certainty it is necessary to establish the legal nature of the business trust and to establish whether the business trust has independent existence within the South African law or whether it is just a specific category of the trust as legal figure. In order to answer this question it has to be established if the business trust differs from the trust figure as its known by the South African law or whether the term “business” only refers to the purpose of the trust. It has to be kept in mind that a trust can be classified on the ground of its existence, the nature of discretion of the trustee and the purpose of the trust. In this study it is indicated that the business trust complies with all the essentialia of the trust figure and that the business trust is classified as such on the ground of the purpose of the trust. The business trust therefore has no independent existence within the South African law and it is merely a category of trusts as it exists in South African law.