A CASE FOR SOME NORMATIVE CONTENT IN SOUTH AFRICAN TRUST LAW

Abstract

The nature and content of the fiduciary duty in South African trust law is discussed and the principles and theory of fiduciary law are set against the value system underpinning such law. The aspect of trust and the role of power within the fiduciary relationship, with particular reference to the duty of care as inherent ingredient of the fiduciary function, are investigated. While the fiduciary duty cannot be separated from the duties of a trustee, it is submitted that it is made up of more than a duty of care, and also includes aspects such as impartiality, independence, accountability, loyalty and good faith. The legislated duties of the company director, namely care, diligence and skill, are compared with the contents of the fiduciary duties of trustees, with reference to traditional viewpoints in other jurisdictions, such as the profit and conflict rule, the duty of loyalty and the law of equity. Against this background the question is posed whether the fiduciary duty of the trustee in South Africa is an expression of positive law only, or whether some normative content has actually infiltrated the application thereof. It is submitted that, as matters of a fiduciary nature are closely interwoven with moral and social aspects, the application of positive law when dealing with the fiduciary duty of trustees has indeed been influenced by some normative thinking.