An examination of the South African authorities and the case law in other similar jurisdictions on the fiduciary duties of directors and senior management of companies (and members of close corporations) indicates the pervasiveness of the strict adherence to the fiduciary duty in this area of law. Apart from the fiduciary duties imposed in terms of the Companies Act 61 of 1973 and the Close Corporations Act 69 of 1984 (a discussion of which falls outside the ambit of this article), the corporate officers who control the assets and who have the power to act on behalf of the corporate entity are at common law required to exercise their powers and rights of control for the benefit of the corporation and to exercise good faith and reasonable care and skill in carrying out their functions.
It is surprising that there does not seem to have been much reaction to the report of the case of Doyle v Board of Executors 1999 (1) All SA 309 (C) - unless it is one of a stunned silence. And yet it appears to be one of those cases which just 'can't be right' . Very briefly, the facts were that Mrs Doyle, the plaintiff's mother, had established an inter vivos trust in 1949 (the judgment refers to 1939 as well , but the later date is probably correct). In terms of the trust deed all the income was to be paid to Mrs Doyle until her death, when the trust was to come to an end and the capital was to devolve upon her children, provided that they had attained the age of twenty-five years. In the event , Mrs Doyle had only one child, a son, who had attained the age of twenty-five years by the time she died in 1994.
We live in a country with one of the highest divorce rates in the world: at present two out of every three marriages end in divorce. It is therefore your duty as an attorney, when consulting for the first lime with a client, to make sure that you are dealing with a 'true' divorce and, to a certain extent also to act as marriage counsellor. Please do not hesitate to suggest that the parties obtain professional counselling.