n Stellenbosch Law Review = Stellenbosch Regstydskrif - Section 6(1) of the Trust Propery Control Act 57 of 1988 revisited : establishing its nature and re-emphasising the validity of the "dual purpose" theory
|Article Title||Section 6(1) of the Trust Propery Control Act 57 of 1988 revisited : establishing its nature and re-emphasising the validity of the "dual purpose" theory|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Affiliations||1 University of the Free State|
|Publication Date||Jan 2011|
|Pages||314 - 329|
This contribution re-examines the validity of the "dual purpose" approach to the interpretation of section 6(1) of the Trust Property Control Act 57 of 1988, which approach was first proffered in 2007 and holds that the provision was enacted with a view to protecting both the public interest as well as the interests of the trust beneficiaries and that it should be interpreted accordingly. Recent academic criticism of this approach is considered, and, after having done so, the findings of the most authoritative decision to deal with section 6(1) thus far - namely the Supreme Court of Appeal's judgment in Lupacchini v Minister of Safety and Security 2010 6 SA 457 (SCA) - are evaluated in the light of the re-examination thus conducted. In particular, through holding that section 6(1) is a directory provision that requires substantive compliance, this contribution (i) re-emphasises the validity of the "dual purpose" approach as a means of ratifying contracts entered into by unauthorised trustees, and (ii) concludes that the application of the approach shows that unauthorised trustees who satisfy a capacity-defining condition imposed by the trust deed in terms of which they were appointed should be permitted to sue or be sued provided that they have a sufficient interest in the litigation.
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