Die wysiging van inter vivos-trustaktes: ’n evaluerende perspektief op die Potgieter-saak

by | Sep 26, 2019 | ACTA, ACTA 2014

Die wysiging van inter vivos-trustaktes: ’n evaluerende perspektief op die Potgieter-saak

Authors Theunis Claassen

ISSN: 1996-2088
Affiliations: None
Source: Acta Juridica, 2014, p. 243 – 267

Abstract

The variation of inter vivos trusts has for a long time been regarded as settled law. Once the beneficiaries have accepted the benefits as conferred, the trustees would only be able to amend the trust deed with the consent of the beneficiaries. The recent case of Potgieter and Another v Potgieter NO and Others 2012 (1) SA637 (SCA) has caused some discussion on whether this rule should also be applied to the situation where a trustee is given express variation powers by the trust deed. The author starts out with a consideration of the legal character of an inter vivos trust, after which follows a brief discussion on the traditional requirements for variation of such a trust. The author then considers the continued validity of these rules given the Potgieter case and recent academic views thereon. In this regard particular emphasis is placed on the impact of express variation powers as provided for in the trust deed and the nature of the benefits being accepted. Lastly the role of the trustee’s fiduciary duties and the possible impact thereof on the validity of a variation are considered. The author concludes that Potgieter leaves the existing legal position regarding the variation of inter vivos trusts unchanged, but that regard should be had to the nature of the benefit being accepted, as the mere acceptance of a spes would not entitle the beneficiary to protection against variation.

Is the DCFR trust a ‘proper’ trust? An evaluation from a South African perspective

by | Sep 25, 2019 | ACTA, ACTA 2014

Is the DCFR trust a ‘proper’ trust? An evaluation from a South African perspective

Authors MJ de Waal

ISSN: 1996-2088
Affiliations: Professor, Department of Private Law, Faculty of Law, Stellenbosch University
Source: Acta Juridica, 2014, p. 219 – 242

Abstract

Against the background of growing interest in the introduction of the trust (in either a general or a more restricted format) in continental Europe, it is evident that the trust as envisaged in Book X of the European Draft Common Frame of Reference (DCFR) constitutes yet a further model or template for a general continental European trust institution. The DCFR trust is of interest to South African lawyers for at least three reasons. First, it would be interesting to compare the South African trust with the DCFR model and to establish in which respects these two ‘civilian incarnations’ of the trust show differences and/or similarities. Secondly, comparative research has proven itself of great value in the trust context and the DCFR trust now provides a further model to which South African lawyers can look for possible solutions to trust problems. Thirdly, as will become apparent in this contribution, English common-law thinking has had a significant influence on the architecture of the DCFR trust. This in itself raises several important questions, specifically regarding the operation of the DCFR trust in a civilian environment that shows some parallels to South African law. The analysis in this contribution will show that, although the DCFR trust does exhibit a number of crucial ‘English’characteristics, it is certainly not a replica of the English trust model. However, it is argued — with reference to the experience of mixed jurisdictions such as Scotland and South Africa — that the importance of the theoretical nature of a particular trust model should not be over-emphasised. The focus should rather be on whether a particular trust device functions properly in all its different dimensions, among them the central issues of trust creation, trust administration and the sufficient protection of trust beneficiaries.

The viability for women’s rights of incorporating Islamic inheritance laws into the South African legal system

by | Sep 25, 2019 | ACTA, ACTA 2014

The viability for women’s rights of incorporating Islamic inheritance laws into the South African legal system

Authors Waheeda Amien

ISSN: 1996-2088
Affiliations: Senior Lecturer in the Faculty of Law, University of Cape Town
Source: Acta Juridica, 2014, p. 192 – 218

Abstract

The call by certain sections of the South African Muslim community for the recognition of Muslim Personal Law in South Africa is a call to recognise Islamic-based private laws that include Muslim family law and Islamic inheritance laws. The proposed Muslim Marriages Bill deals only with Islamic-based family laws of marriage, divorce, guardianship and custody of and access to minor children. This paper interrogates the viability for women’s rights of also recognising Islamic inheritance laws within the South African legal framework. It is argued that such recognition will impact negatively on the rights of women as well as adopted children and children born out of wedlock to Muslim parties. Currently, these marginalised groups have sufficient protection within the secular intestate succession laws of South Africa. For those parties who wish to assert their Islamic inheritance rights, they can avail themselves of the option of leaving a will. It is therefore proposed that the status quo should not be changed by affording separate recognition to Islamic inheritance laws.

Faskh (divorce) and intestate succession in Islamic and South African law: Impact of the watershed judgment in Hassam v Jacobs and the Muslim Marriages Bill

by | Sep 25, 2019 | ACTA, ACTA 2014

Faskh (divorce) and intestate succession in Islamic and South African law: Impact of the watershed judgment in Hassam v Jacobs and the Muslim Marriages Bill

Authors Najma Moosa, Muneer Abduroaf

ISSN: 1996-2088
Affiliations: Professor of Law, Department of Private Law, UWC; Sheikh and doctoral candidate
Source: Acta Juridica, 2014, p. 160 – 191

Abstract

This article deals with intestate succession against the background of the complex Islamic legal aspects of faskh and talaq as forms of divorce. It elaborates on the divergent views held by Islamic scholars and explains the foundational principles of Islamic law. The article offers a new perspective on the ground-breaking case of Hassam v Jacobs and sheds light on its surrounding circumstances and factual background in order to indicate that the Cape High Court may have unnecessarily pronounced on the recognition of polygynous Muslim marriages, an issue which in fact may not have been before the court. The article also examines how the Islamic law of divorce is practically administered by Islamic organisations within Cape Town. Practical recommendations are offered for dealing with the complexities of recognising and administering aspects of Islamic law in secular courts and the interaction with Islamic bodies administering Muslim personal law.

A few comments on the (possible) revival of the customary law rule of male primogeniture: can the common-law principle of freedom of testation come to its rescue?

by | Sep 25, 2019 | ACTA, ACTA 2014

A few comments on the (possible) revival of the customary law rule of male primogeniture: can the common-law principle of freedom of testation come to its rescue?

Authors Christa Rautenbach

ISSN: 1996-2088
Affiliations: Professor, Faculty of Law, North-West University (Potchefstroom Campus)
Source: Acta Juridica, 2014, p. 132 – 159

Abstract

The customary law rule of male primogeniture has been declared unconstitutional and invalid, and legal sources of the common law of succession have been tailored to provide for the devolution of estates which were formerly regulated by the customary law of succession. Two questions are addressed in this contribution. Firstly, has the legal development over the last few years left us with a unified system of succession or do we still have parallel systems of succession laws which necessitate the application of choice of law rules to determine which system is relevant where a testator was subject to customary law during his lifetime? The evidence seems to suggest that the law of succession remains, at least in theory, a combined system which will require a choice at some time or other, especially when the applicable legal rules must be determined. When one has to deal with public policy issues, the interaction between the common and customary law of succession brings us to the second question, viz. the scope and application of freedom of testation in customary law and, more particularly, the question whether or not a testator living under a system of customary law can revive the rule of male primogeniture by exercising his or her right to freedom of testation. A cursory perusal into this issue reveals that the law as it stands is anything but clear. The application of common-law principles in the customary law of succession and vice versa leads to interesting results and anomalies which will challenge future approaches to the law of succession in general and the customary law of succession in particular.

Reconsidering the indignus principle in the South African law of succession

by | Sep 25, 2019 | ACTA, ACTA 2014

Reconsidering the indignus principle in the South African law of succession

Authors Shaun Barns, Ayden Thompson

ISSN: 1996-2088
Affiliations: None
Source: Acta Juridica, 2014, p. 123 – 131

Abstract

The application of vague public policy principles to the question of disqualification from benefits in the South African law of succession is becoming the norm in our courts. Little or no regard is being given to the traditional overarching Roman-Dutch principle that ‘no person may benefit from his or her own wrongdoing or benefit from what is punishable.’ In this article we argue that the oversight stems from a misinterpretation of the seminal case of Taylor v Pim. It is not suggested that the application of public policy considerations to cases of disqualification has led to unjust or prejudicial outcomes, but rather that these outcomes could just as easily have been reached if the courts had given true regard to the applicable Roman-Dutch law principles, which were consistently applied by the courts in the 18th and 19th centuries. It is submitted that to subscribe once again to the Roman-Dutch law will remove the possible vagueness introduced by public policy considerations and will avoid startling outcomes in the future.