Twins Forged: Trustee and Director Disqualifications

AUTHOR: BONGANI MEMANI

The amendments to the Trust Property Control Act, 57 of 1988, Amendment of Regulations (“the Trust Amendment Act”) on trustees, which became effective on 1 April 2023 was closely aligned to the Companies Act, 71 of 2008 (“the Companies Act”), especially in terms of the disqualification of one being a trustee in accordance with the Trust Amendment Act and of one being a director in accordance with the Companies Act.

The disqualification of a trustee in accordance with the more recent Trust Amendment Act now disqualifies one from being a trustee if there is a court order against a person as it provides on regulation 3A (1)(iii) of the Trust Amendment Act that;

“(1)   The public register that the Master is required to establish and maintain in terms of section 6(1H) (a) of the Act must provide for—

(iii)  the court case number relating to the relevant court order contemplated in section 6(1H) (a) of the Act…”

The above amendment is similar to one in the Companies Act which also disqualifies one as director if he or she is prohibited by a court to be one as section 69 (8)(a) of the Companies Act provides that;

“(8)  A person is disqualified to be a director of a company if (a) a court has prohibited that person to be a director or declared the person to be delinquent in terms of section 162…….”

The alignment described above is an important upliftment to the law as the capability of being a director and a trustee can objectively be determined by a court of law. This also creates confidence in the institutions, beneficiaries, shareholders etc., and other people whom they appoint to manage their possessions in their best interest. Profitability from investment is ascertained.



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