What Are The Duties & Responsibilities Of A Trustee In South Africa?

The duties and responsibilities of a trustee in South Africa flow from two sources: the Trust Property Control Act 57 of 1988 (the principal statute, commonly called the TPCA) and the common-law fiduciary duties recognised by South African courts. Statutorily, trustees must hold letters of authority issued by the Master of the High Court before they can act (section 6), exercise their powers only by majority or unanimous written resolution (section 20), and lodge annual financial statements with the Master. Common-law duties superimpose a fiduciary standard of care, skill and diligence, a duty to act in good faith and in the interests of the beneficiaries, a duty to avoid conflicts of interest, and a duty not to profit from the office. Breach of these duties exposes the trustee to personal liability to beneficiaries and to removal by the Master.

The Statutory Framework: Where Trustee Duties Come From

The principal statute is the Trust Property Control Act 57 of 1988; it sets the procedural and supervisory floor for trustees and is administered under the supervision of the Department of Justice and Constitutional Development. The common law layers additional fiduciary duties on top of the TPCA — they are not replaced by the statute, and a trustee who satisfies the TPCA on paper can still fall foul of the common-law standard.

The Master’s office of the High Court supervises trust administration under the TPCA and may investigate, instruct, and, in defined cases, remove trustees. Trustees are not employees or agents of the beneficiaries — they hold an office against the trust property and owe duties to the trust and to its beneficiaries jointly.

Before a Trustee Can Act: Letters of Authority

A trustee must obtain written authorisation (commonly called letters of authority) from the Master of the High Court before dealing with trust property — acting without authority exposes the trustee personally. The Master issues letters of authority once the trust deed and required supporting documents (ID copies, resolution accepting appointment, security where applicable) are lodged.

If a trustee is replaced or added, fresh authority is needed; original trustees do not automatically inherit authority by virtue of being named in the deed. Until letters of authority issue, the trustee’s role is largely ceremonial — no bank account, no investment decisions, no property dealings.

The Core Statutory Duties Under the TPCA

Section 6 of the TPCA requires trustees to exercise their powers in the name of the trust and within the trust deed — actions taken outside the deed are void or unauthorised. Section 20 requires trustees to act by resolution: written resolutions must be passed (unanimous where the deed requires, otherwise majority), and a copy of every resolution must be filed with the Master.

Beyond these procedural rules, the TPCA imposes ongoing duties:

• Duty to keep proper books and records — including an account of all trust transactions; supports both Master’s oversight and beneficiary accounting.
• Duty to lodge financial statements with the Master — annual financial statements are required, and failure to lodge is a ground for Master’s inquiry.
• Duty to register and report for tax — trust income tax under the Income Tax Act sits alongside TPCA reporting; SARS and Master’s obligations are separate but interlinked.

The Common-Law Fiduciary Duties (Layered on Top)

The TPCA sets the procedural floor; the common law sets the standard of conduct. South African courts have, over decades, recognised a layered set of fiduciary duties that apply to every trustee regardless of what the trust deed says.

• Duty of care, skill and diligence — the standard is that of a prudent person managing the affairs of another; professional trustees (attorneys, accountants) are held to a higher standard matched to their expertise.
• Duty to act in good faith and in the interests of the beneficiaries — the trustee cannot prefer third parties, their own interests, the settlor’s wishes where they conflict with the deed, or charitable purposes above identified beneficiaries.
• Duty to avoid conflicts of interest — a trustee who has a personal interest in a trust transaction must disclose and recuse; failing that, the transaction can be set aside.
• Duty not to profit from the office — trustees may be reimbursed for reasonable expenses and (where the deed permits) receive trust income as a beneficiary, but cannot take secret profits or pay themselves without authority.
• Duty to act jointly — trustees must generally act collectively; a single trustee cannot bind the trust without authority from the others.

The common-law duties are not theoretical — they are what a court will measure a trustee against when beneficiaries sue. Where a section of the TPCA is silent, the common law fills the gap.

Information and Accounting Duties to Beneficiaries

Beneficiaries are entitled to reasonable information about the trust’s administration — this flows from common-law fiduciary duty and is reinforced by case law. Trustees must account for trust property and income on demand, subject to the trust deed’s discretion.

Beneficiaries do not have unlimited access to the trust deed itself — that is a matter for the Master’s office and the deed’s terms. A trustee who refuses reasonable information without justification risks Master’s intervention and personal liability.

Liability: When the Trustee Pays Personally

Trustees who act outside their authority — without letters of authority, beyond the trust deed, or in breach of a duty — are personally liable to the persons they commit the trust to. Liability may be joint and several between co-trustees where they collectively authorise the breach.

The Master’s powers include removing a trustee and, in serious cases, referring matters to the National Prosecuting Authority or the South African Police Service. Indemnity from the trust property is available only insofar as the trustee acted lawfully and within the deed — misconduct strips the indemnity.

Removal and Resignation

A trustee can resign by giving written notice and lodging the resignation with the Master — incoming trustees must be appointed and authorised before the outgoing trustee is released. The Master can remove a trustee in defined circumstances (for example, insolvency, misconduct, or failure to lodge required documents) under the TPCA. Beneficiaries and co-trustees may apply to the Master for removal in cases of incapacity, dereliction of duty, or conflict. Removal does not absolve the trustee of liability for breaches committed before they left office.

Trustee Duties Compared With Director Duties

Trustees and directors are both office-bearers with fiduciary duties, but the surrounding legal regime is different. The table below sets out the headline contrasts.

Aspect	Trustee (Trust Property Control Act 57 of 1988)	Director (Companies Act 71 of 2008)
Source of authority	Letters of authority from Master of the High Court	Memorandum of Incorporation; board appointment
Oversight body	Master of the High Court	CIPC / Companies Tribunal
Day-to-day legal personality	Trust is not a separate legal person; trustees act for the trust	Company is a separate legal person; directors act for the company
Reporting	Annual financial statements to the Master and SARS	Annual financial statements to CIPC and SARS
Liability	Personal for breach of fiduciary duty and unauthorised acts	Personal for breach of fiduciary duty, solvency and good-faith duties

Practical Steps for a Newly Appointed Trustee

For someone who has just been appointed as a trustee and is wondering what to do this week, the list below sets out the operational order. It is not legal advice for a specific trust — the trust deed may add steps or change the sequence — but it tracks the statutory framework in the order most trustees actually work through it.

1. Read the trust deed carefully — it is the source of the trustee’s specific powers and any restrictions.
2. Lodge the documents required by the Master’s office to obtain letters of authority.
3. Once authority issues, ensure all trust bank accounts, investments, and immovable property are reflected in the trust’s name.
4. Pass a written trustee resolution authorising any significant transaction (investment, property sale, distribution).
5. Open and maintain the trust’s accounting records; prepare annual financial statements.
6. Lodge a copy of every trustee resolution with the Master.
7. Lodge the trust’s annual financial statements with the Master.
8. Confirm the trust’s tax registration with SARS and submit the annual IT3T trust return.

Burger Huyser Attorneys fields the operational end of these steps — trust formation, administration, and cancellation — through its Trusts practice, and the firm’s Linden/Randburg head office at 49 First Avenue (011 888 0246) is the practical first contact for trustees working through the Master’s office in the Gauteng region.

Frequently Asked Questions

What law governs the duties of a trustee in South Africa?

The principal statute is the Trust Property Control Act 57 of 1988; common-law fiduciary duties recognised by South African courts are layered on top. Together they set the standard of care, skill and diligence, the duty to act in good faith, the duty to avoid conflicts of interest, and the duty not to profit from the office.

Can a trustee act without letters of authority from the Master?

No. Under the Trust Property Control Act a trustee must obtain letters of authority from the Master of the High Court before dealing with trust property; acting without authority exposes the trustee to personal liability for any transaction entered into.

Can a trustee be held personally liable for losses to the trust?

Yes — a trustee who exceeds authority, breaches a fiduciary duty, or acts outside the trust deed is personally liable to the trust and the beneficiaries for the loss caused. The trust’s indemnity does not protect a trustee who has acted unlawfully.

Can the Master of the High Court remove a trustee?

Yes — the Master may remove a trustee in defined circumstances under the Trust Property Control Act (including insolvency, misconduct, failure to lodge required accounts, and unfitness more generally), and beneficiaries or co-trustees may apply to the Master for removal on related grounds. Removal does not absolve the trustee of liability for breaches committed before they left office.

What records does a trustee need to keep?

A trustee must keep proper books and records of all trust transactions and prepare annual financial statements, which must be lodged with the Master. Trustees also keep written resolutions passed by the body of trustees and a record of distributions made, so that they can account to the beneficiaries on demand.

Are trustees allowed to pay themselves?

Only as authorised by the trust deed and any resolution of the co-trustees — and any trustee remuneration is, in principle, taxable in the trustee’s hands. A trustee who pays themselves without authority risks removal and personal liability, and risks the Master’s rejection of the trust’s accounts.

Burger Huyser Attorneys fields the duties side of trust work through its Trusts practice — trust formation, administration, and cancellation — alongside the firm’s General Litigation and Family Law teams where disputes arise. The Linden/Randburg head office is at 49 First Avenue (011 888 0246), with branches across Gauteng in Bedfordview, Centurion, Pretoria (Menlyn), Midrand, Sandton, Roodepoort, and Alberton. If you have been appointed as a trustee, are considering whether to take up an appointment, or want a trust deed reviewed against the Trust Property Control Act, the firm can take instructions on a single-trustee and multi-trustee basis. Initial enquiries go through the practice area; the firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).