Piercing the veneer of the trust in the South African Trust Law: Liability of trustees of a business trust for fraudulent trading

Abstract

AbstractThe trust, whichever form it is moulded in, is a useful instrument for estate planning. However, many family businesses nowadays take the form of a business trust without any change in the circumstances surrounding it. This submits the trust to diatribe and suspicion because the protection the trust offers is often exploited. In Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA) it was obiter the court's view that it might be necessary to extend well‐established company law principles also to trusts. The court referred to the Turquand principle and the principle of “piercing the corporate veil”. The motivation is that assets allegedly vesting in the trustees of a trust, in fact belong to one or more of the trustees personally. This view may have obvious and important implications in case of the sequestration of the trustee's estate. It implies that the assets concerned may be used in satisfaction of the trustee's debts because “in fact it belongs to the trustee”. However, it may also be used in satisfaction of debts “to the repayment of which the trustees purported to bind the trust”. Thus, if the trust's estate is sequestrated, the assets may be used in satisfaction of the trust's debts. If the personal estate of the trustee is sequestrated, these assets may be utilized in satisfaction of the trustee's personal debts. Consequently it is relevant to ask the question whether the trustee's personal estate (irrespective of sequestration) would be liable for restitution in favour of the beneficiaries for these actions in breach of trust in competition with the creditors of the trustee. Copyright © 2008 John Wiley & Sons, Ltd.