FROM BEING IN THE AUDIENCE TO WAITING IN THE WINGS: CAN THE IUS EXPECTATI DOMINII IMPROVE THE UNENVIABLE POSITION OF THE TRUST BENEFICIARY IN THE OWNERSHIP TRUST?

Eben Nel Eben Nel

doi:10.17159/obiter.v40i1.11311

Abstract

In the development of South African trust law, the courts have often attempted to identify a basis in Roman-Dutch law for the trust figure, with the inter vivos trust being seen as a contract akin to a stipulatio alteri. The ownership of trust assets, and in particular the legal position of the trust beneficiary, has proved to be closely interwoven with the legal nature of the trust figure.It is submitted that the emphasis on the contractual aspect of the living trust has in the past overshadowed its sui generis nature. In this article, both the acceptance requirement placed on beneficiaries of ownership trusts as manifested in Potgieter v Potgieter NO 2012 (1) SA 637 (SCA), and the trust-relationship theory proposed by JP Coetzee, are discussed. The lack of real rights vesting in the discretionary beneficiary is evaluated, from both a contractual and a sui generis perspective, with the writer proposing the application of the Roman-Dutch principle of ius expectati dominii as a mechanism for developing beneficiary rights. It is submitted that the recognition of a right of expectant ownership will not only address the anomalous position of beneficiaries in ownership trusts but also impact the behaviour of trustees, inhibit alter ego trusts and contribute towards the maturation of the trust figure. In a contractual context, the existence of an enforceable right will allow the courts to apply applicable public policy principles to the evaluation of trustee decisions.

Highlights

South African trust law has developed in a unique way, distinct from any other trust jurisdiction, and in consonance with the principles of South African law in general.[1]
In the development of South African trust law, the courts have often attempted to identify a basis in Roman-Dutch law for the trust figure, with the inter vivos trust being seen as a contract akin to a stipulatio alteri
It is submitted that if our courts should consistently acknowledge the true nature of the trust figure as sui generis, resisting any attempt to force the inter vivos trust into a contractual mould, nothing will prevent the fiduciary relationship between the trustees and the beneficiary to become the source of ex lege rights, as suggested by Coetzee

Summary

SUMMARY

In the development of South African trust law, the courts have often attempted to identify a basis in Roman-Dutch law for the trust figure, with the inter vivos trust being seen as a contract akin to a stipulatio alteri. It is submitted that the emphasis on the contractual aspect of the living trust has in the past overshadowed its sui generis nature. In this article, both the acceptance requirement placed on beneficiaries of ownership trusts as manifested in Potgieter v Potgieter NO 2012 (1) SA 637 (SCA), and the trust-relationship theory proposed by JP Coetzee, are discussed. The lack of real rights vesting in the discretionary beneficiary is evaluated, from both a contractual and a sui generis perspective, with the writer proposing the application of the Roman-Dutch principle of ius expectati dominii as a mechanism for developing beneficiary rights. The existence of an enforceable right will allow the courts to apply applicable public policy principles to the evaluation of trustee decisions

INTRODUCTION

47 Conaglen Fiduciary Loyalty

50 See Dorfman “Property and Collective Undertaking

CONCLUSION