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Practice: Lawyers frustrated by delays in registering trusts

Lawyers who are attempting to register special trusts for minors and incapacitated beneficiaries of medical negligence and Road Accident Fund awards are at their wits end as the Master of the High Court is apparently still refusing to register these trusts. A Rapport report notes that the Chief Master earlier issued a directive to suspend such registrations pending clarity from the court about appropriate mechanisms. The Gauteng High Court delivered judgment two weeks ago following a special referral by the Judge President. The Deputy Master, Loira Moshidi, approached the court as her office was of the view that the appointment of a curator bonis, or government by the Administration of Estates Act, is more appropriate than the creation of a trust and appointment of trustees under the Trust Property Control Act. The supervisory power of the Master is much wider under the former. Legalbrief Today notes that the full court held that the Master’s views were ‘based on a misunderstanding of her statutory function’ and that she ‘has no special duty to protect public funds’. The three judges held that both mechanisms – appointment of a curator bonis or the creation of a trust – are valid mechanisms to be considered by a court. The court gave detailed guidelines on how these matters should be handled and what practice directives should contain. However, Rapport notes, lawyers complain that the Master is still not registering trusts. Chief Master Martin Mafojane has still not issued a revised directive and says he is awaiting feedback from the different Master’s offices on the judgment. ‘Our legal unit is still studying the judgment. I planned to pen a directive on 1 June 2022, but now it appears as if I must wait for the legal unit’s comment/opinion,’ Mafojane said.

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