| (1) |
Any person whose appointment as trustee in terms of a trust instrument, section 7 or a court order comes into force after the commencement of this Act, shall act in that capacity only if authorised thereto in writing by the Master. |
| (1A) |
A person is disqualified from being authorized as a trustee if the person— |
| (a) |
is an unrehabilitated insolvent; |
| (b) |
has been prohibited by a court to be a director of a company, or declared by a court to be delinquent in terms of section 162 of the Companies Act, 2008 (Act No. 71 of 2008), or section 47 of the Close Corporations Act, 1984 (Act No. 69 of 1984); |
| (c) |
is prohibited in terms of any law to be a director of a company; |
| (d) |
has been removed from an office of trust, on the grounds of misconduct involving dishonesty; |
| (e) |
has been convicted, in the Republic or elsewhere, and imprisoned without the option of a fine, or fined more than the prescribed amount in terms of section 69 of the Companies Act, 2008, for theft, fraud, forgery, perjury or an offence— |
| (i) |
involving fraud, misrepresentation or dishonesty, or money laundering, terrorist financing or proliferation financing activities as those terms are defined in section 1(1) of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001); |
| (ii) |
in connection with the promotion, formation or management of a company, or in connection with any act contemplated in section 69(2) or (5) of the Companies Act, 2008; or |
| (iii) |
under this Act, the Companies Act, 2008, the Insolvency Act, 1936 (Act No. 24 of 1936), the Close Corporations Act, 1984, the Competition Act, 1998 (Act No. 89 of 1998), the Financial Intelligence Centre Act, 2001, the Financial Markets Act, 2012 (Act No. 19 of 2012), Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004), or the Tax Administration Act, 2011 (Act No. 28 of 2011); |
| (f) |
is subject to a resolution adopted by the Security Council of the United Nations when acting under Chapter VII of the Charter of the United Nations, providing for financial sanctions which entail the identification of persons or entities against whom member states of the United Nations must take the actions specified in the resolution; or |
| (g) |
is an unemancipated minor, or is under a similar legal disability. |
[Section 6(1A) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 per Proclamation Notice 109(b)(ii), GG47805, dated 31 December 2022]
| (1B) |
A disqualification in terms of subsection (1A)(d) or (e) ends at the later of— |
| (a) |
five years after the date of removal from office, or the completion of the sentence imposed for the relevant offence, as the case may be; or |
| (b) |
one or more extensions, as determined by a court from time to time, on application by the Master in terms of subsection (1C). |
[Section 6(1B) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 per Proclamation Notice 109(b)(ii), GG47805, dated 31 December 2022]
| (1C) |
A disqualification in terms of subsection (1A)(f) ends when the Security Council of the United Nations takes a decision to no longer apply that resolution to a person contemplated in that subsection. |
[Section 6(1C) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 per Proclamation Notice 109(b)(ii), GG47805, dated 31 December 2022]
| (1D) |
At any time before the expiry of a person’s disqualification in terms of subsection (1A)(d) or (e)— |
| (a) |
the Master may apply to a court for an extension contemplated in subsection (1B)(b); and |
| (b) |
the court may extend the disqualification for no more than five years at a time, if the court is satisfied that an extension is necessary to protect the public, having regard to the conduct of the disqualified person up to the time of the application. |
[Section 6(1D) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 per Proclamation Notice 109(b)(ii), GG47805, dated 31 December 2022]
| (1E) |
A court may exempt a person from the application of any provision of subsection (1A)(a), (c), (d) or (e). |
[Section 6(1E) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 per Proclamation Notice 109(b)(ii), GG47805, dated 31 December 2022]
| (1F) |
The Registrar of the Court must, upon— |
| (a) |
the issue of a sequestration order; |
| (b) |
the issue of an order for the removal of a person from any office of trust on the grounds of misconduct involving dishonesty; or |
| (c) |
a conviction for an offence referred to in subsection (1A)(e), send a copy of the relevant order or particulars of the conviction, as the case may be, to the Master. |
[Section 6(1F) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 per Proclamation Notice 109(b)(ii), GG47805, dated 31 December 2022]
| (1G) |
The Master must notify each trust which has as a trustee to whom the order or conviction relates, of the order or conviction. |
[Section 6(1G) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 per Proclamation Notice 109(b)(ii), GG47805, dated 31 December 2022]
(1H)
| (a) |
The Master must establish and maintain in the prescribed manner a public register of persons who are disqualified from serving as a trustee, in terms of an order of a court pursuant to this Act or any other law. |
| (b) |
The prescribed requirements referred to in paragraph (a) must be prescribed after consultation with the Minister of Finance and the Financial Intelligence Centre, established by section 2 of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001). |
[Section 6(1H) inserted by section 2 of the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022), GG47802, dated 29 December 2022 - effective 1 April 2023 as per (a) of Commencement Notice No. R.3241, GG48351, dated 31 March 2023]
| (2) |
The Master does not grant authority to the trustee in terms of this section unless— |
| (a) |
he has furnished security to the satisfaction of the Master for the due and faithful performance of his duties as trustee; or |
| (b) |
he has been exempted from furnishing security by a court order or by the Master under subsection (3) (a) or, subject to the provisions of subsection (3) (d), in terms of a trust instrument: |
Provided that where the furnishing of security is required, the Master may, pending the furnishing of security, authorise the trustee in writing to perform specified acts with regard to the trust property.
| (3) |
The Master may, if in his opinion there are sound reasons to do so— |
| (a) |
whether or not security is required by the trust instrument (except a court order), dispense with security by a trustee; |
| (b) |
reduce or cancel any security furnished; |
| (c) |
order a trustee to furnish additional security; |
| (d) |
order a trustee who has been exempted from furnishing security in terms of a trust instrument (except a court order) to furnish security. |
| (4) |
If any authorisation is given in terms of this section to a trustee which is a corporation, such authorisation shall, subject to the provisions of the trust instrument, be given in the name of a nominee of the corporation for whose actions as trustee the corporation is legally liable, and any substitution for such nominee of some other person shall be endorsed on the said authorisation. |
Stamp Duties Act, 1968 (Act 77 of 1968)
