INTERNATIONAL TRUSTS ACT, 1994 (Act 26 of 1994)

PART VI

GENERAL POWERS OF TRUSTEES

34.(1) Subject to this Act and to the terms of the international trust, a trustee has, in relation to the trust property, all the powers of a beneficial owner.

(2) A trustee shall exercise the functions of the office of trustee only in the interests of the beneficiaries or of the purpose and in accordance with the terms of the international trust.

35. A trustee may sue and be sued as trustee.

36.(1) A trustee may consult professional persons in relation to the affairs of the international trust.

(2) The terms of the international trust may require a trustee to consult or obtain the consent of another person before exercising any function.

(3) A person shall not, by virtue of being so consulted or giving or refusing such consent, be deemed to be a trustee.

37.(1) A trustee shall not delegate any functions of the office of trustee unless permitted to do so by this Act or by the terms of the international trust.

(2) Except where the terms of the international trust otherwise provide, a trustee may -

(a) delegate the management of the trust property to, and appoint, investment managers whom the trustee reasonably considers to be competent and qualified to manage the investment of the trust property;

(b) appoint professional persons to act in relation to the affairs of the trust, or to hold any trust property; and

(c) authorise any such manager or person to retain any commission or other payment usually payable for services of the description rendered.

(3) A trustee who in good faith makes or permits the continuation of a delegation or appointment under subsection (2), shall not be liable for any loss to the international trust arising from the delegation or appointment.

38.(1) Unless otherwise provided by the terms of the international trust, a trustee may delegate for a period not exceeding 12 months the performance of the trust or function vested in the trustee either alone or jointly as trustee.

(2) A delegation under this section shall be in writing and -

(a) in case the delegator is an individual, shall be signed by the delegator in presence of a witness who shall also sign;

(b) in case the delegator is a body corporate, shall be signed and sealed in accordance with its rules or its articles of association of the body corporate.

(3) Within 7 days of signing a delegation under subsection (2), the delegator shall give notice of the delegation to-

(a) every other person who under the terms of the international trust has power either alone or jointly to appoint a new trustee; and

(b) every co-trustee.

(4) The notice under subsection (3) shall state -

(a) the date of commencement and duration of the delegation;

(b) the name and the address of the delegatee;

(c) the reason for delegating the trust or the function;

(d) the trust or the function delegated.

(5) A trustee may delegate the trust or function to any person qualified to act as trustee of an international trust other than to the only other co-trustee of the delegator.

(6) A third party dealing with the delegatee may not rely on a failure to comply with subsections (3) and (4) in order to invalidate anything done by the delegatee.

(7) For the purpose of performing the trust or function delegated, the delegatee may exercise any function conferred on the delegator as trustee by law or by the terms of the trust, other than the power to delegate under this section.

39.(1) Except -

(a) where the terms of the international trust expressly so provide;

(b) with the consent in writing of every beneficiary; or

(c) by an order of the court, a trustee shall not be entitled to remuneration for services provided as a trustee.

(2) All expenses and liabilities properly incurred in connection with the international trust may be paid out of the trust property.

(3) A trustee may be reimbursed from the international trust property for all expenses duly incurred by the trustee in the performance of the function of the office of trustee.

40.(1) The terms of an international trust may empower a trustee to appropriate without the consent of the beneficiary any part of the trust property and apply it in or towards satisfaction of the liabilities of a beneficiary.

(2) The trustee shall have the discretion to value and decide on the part of the trust property that may be so appropriated.

41. A body corporate may -

(a) act in connection with an international trust by a resolution of its board of directors or other governing body; or

(b) following a resolution referred to in paragraph (a) appoint one or more of its officer or employee to act on its behalf in connection with the international trust.

42. Subject to section 8, or to the terms of the international trust and to an order of the court, a trustee shall not disclose documents which reveal-

(a) the deliberations as to how the trustee should exercise the functions of the office of trustee;

(b) the reasons for any decision made in the exercise of those functions;

(c) any material upon which such a decision was or might have been based.