FISA Annual Conference

1.   Fiduciary duty in a wider context – more in demand than ever – Dr Ronel Williams (TrustQore, Mauritius)

Dr Williams investigated the origins of fiduciary duty and the development through the ages, from 1790 BC to today.  She then focussed on where the duty was traditionally owed and how that has developed in recent times, with new areas where the duty has come into focus.  Recent influences on the understanding of the contents of the duty are the focus on ESG (environmental, social and governance) issues, new asset classes (like crypto currencies), the post-Covid world, the disappearance of cash, and the focus on sustainable finance.  The contents of the duty with specific reference to trustees was investigated against the influences like impact investing and sustainability.

2.   Changes over time in the SCA’s treatment of abused trusts in divorce matters – Prof Bradley Smith (University of the Free State)

Prof Smith looked at the development of the law by the Supreme Court of Appeals (SCA) regarding divorce matters and the abuse of trusts to place assets outside the reach of spouses in these matters since the case of Badenhorst v Badenhorst in 2006.  He focussed on the core idea of a trust in South African law and how the separation of control and enjoyment is undermined in cases of trust abuse to keep assets out of reach or to reduce an estate’s value for purposes of the calculation of accrual claims.  The different tests developed by the SCA to determine whether a trust was the alter ego of the founder or previous owner of the assets was discussed to attempt to identify guidelines as to when a trust would be regarded as a structure aimed at the manipulation of estate values.

3.     Financial Planning in an ever-changing world – Challenges and Opportunities – Ms Nici MacDonald (The Financial Planning Institute of Southern Africa)

Ms MacDonald focussed on the poor performance of the school system as far as producing learners who pass matric mathematics is concerned.  Only 13% of matriculants in 2021 passed mathematics with a mark of more than 60%.  This feeds through universities into the professions where numerical skills are important.  At the same time the demands on humans to deal with information has increased exponentially.  Our brains are expected to deal with 94GB of information every day, while 500 years ago the average human had to process the same amount in a lifetime.  Add the generational differences and it becomes clear why the professions struggle with low pass rates in professional examinations.

4.     New inroads into freedom of testation? – Prof Francois du Toit (University of the Western Cape)

Prof du Toit gave an overview of cases before our courts over the last 20 years in which the limitation on freedom of testation based on public policy was re-modelled due to the courts’ view that public policy is encapsulated in the Bill of Rights in the Constitution in the constitutional era in South Africa.  These cases at first seemed to acknowledge the public-private divide in that wills and trusts in which a public element was present seemed to have been the subject of closer scrutiny than those where the bequests and benefits were purely intended for the family of the testator.  This changed with the Constitutional Court’s judgements in King v De Jager, in which a provision in a will signed 120 years ago was held to be discriminatory and therefore in conflict with section 9 of the Constitution because it left fideicommissary bequests to the great-grandsons of the testators, excluding the great-granddaughters.  

5.     King v De Jager – A sea change for Muslim succession law in South Africa? – Prof Fatima Osman (University of Cape Town)

Prof Osman approached the King v De Jager case from a different angle – what the influence of this case on Sharia rules of succession could be.  These rules usually have the effect that male heirs receive double the share received by female heirs.  While the original idea behind these rules was that a male sibling(s) who inherits more should care for his female sibling(s), this is not always observed.  Prof Osman is of the opinion that, in the wake of King v De Jager, observance of religious prescripts is not sufficient justification to avoid a finding of gender discrimination in contravention of section 9 of the Constitution in a will where these rules are followed.  She suggests a bequest where these rules are followed, but subject to the South African law legal figure of a modus, under which an enforceable obligation is placed on the male heir(s) to comply with the duty to care for the female heir(s). 

6.     Regulatory Update – Ms Bongiwe Adonis (standing in for Adv Martin Mafojane – Chief Master of the High Court)

Ms Adonis gave an overview of the challenges the Master’s Offices faced during the Covid-19 pandemic and the cyber attack on the Department of Justice’s IT systems.  She also gave an update on progress with moving the Master’s Office processes into a paperless environment with self-service facilities for fiduciary professionals.  Self-service kiosks have been piloted in several Master’s Offices with promising results so far, while the acceleration of this process is foreseen.

7.     The looming grey-listing threat – Why change legislation? – Mr Philip Langenhoven (Financial Intelligence Centre)

Mr Langenhoven explained what the Financial Action Task Force is and what its aims and goals are.  He also dealt with the latest peer review by the FATF which found South Africa’s legislative and governance processes and frameworks wanting.  The purpose and consequences of grey-listing was also explained.  He then spent some time on the proposed legislation, the  General Laws (AML & CTF) Amendment Bill (Bill 18 of 2022) and specifically on the proposed changes to the Trust Property Control Act (on which FISA submitted comment to the Parliamentary Standing Committee on Finance).

8.     Ethical decision-making in an uncertain world – Dr Paul Vorster (The Ethics Institute)

Dr Vorster unpacked what is ethics and concluded that it is in essence a shared meaning guiding behaviour.  He used the example of the number of people who must do their work properly to ensure that a passenger plane can fly safely from Johannesburg to Cape Town, and is of the view that we do not give enough recognition to humankind for acting ethically most of the time.  He then dealt with the types of ethical problems which we encounter, such as the ethical challenge and the ethical dilemma.  The former is where there is a clear distinction between right and wrong, while the latter is where none of the available alternatives will have a good outcome.  Finally Dr Vorster gave an overview of the five lenses used in ethical decision making, i.e. utilitarianism (benefit for all), deontology (considering the rights of those involved), the common good, fairness and justice, and virtues.

9.     Panel discussion

An hour-long panel discussion was a great success again.  During this all questions to all speakers were facilitated. 


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