The s 9 standard of care — and you cannot contract out of it
Being a trustee is not a passive honour. Trustees must apply real care and skill to the management of assets that belong to others, and the standard against which they are judged is set by statute, not by the trust deed. It is an objective standard: the question is not whether a trustee did their personal best, but whether they met the standard reasonably expected of someone managing another’s affairs.
A trustee shall in the performance of his duties and the exercise of his powers act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another.
The second half of section 9 is what gives the standard its teeth. A trust deed cannot lawfully exempt a trustee from liability for falling short of it — any such clause is simply void to that extent.
Any provision contained in a trust instrument shall be void in so far as it would have the effect of exempting a trustee from or indemnifying him against liability for breach of trust where he fails to show the degree of care, diligence and skill as required in subsection (1).
The practical consequence: a wide “the trustees shall not be liable for any loss” indemnity in a deed offers no protection against a real breach of the duty of care. It can cover honest errors that still meet the standard, but it cannot rescue a trustee who failed to act with reasonable diligence.
Keeping trust property separate from the trustee’s estate
A trustee holds trust property in a representative capacity, not as owner. The Act reinforces this by keeping the trust estate ring-fenced from the trustee’s personal estate — which is exactly why the structure protects assets from the trustee’s personal creditors.
Trust property shall not form part of the personal estate of the trustee except in so far as he as trust beneficiary is entitled to the trust property.
Section 10 of the Act backs this up by requiring trust money to be kept in a separate trust account — trust funds must not be run through a trustee’s own bank account. Open a dedicated trust bank account, register trust assets in the trustees’ names “in their capacity as trustees of the [name] Trust”, and never co-mingle trust money with personal funds. Co-mingling is one of the clearest markers a court uses to find that the separation between trustee and trust was never real.
The independent trustee and the Parker warning
The single most common reason a family trust fails is that the founder never genuinely let go. Where the founder is the dominant trustee, the only real decision-maker, and the main beneficiary, there may be no practical separation between ownership and enjoyment — and the courts have said so.
There is no blanket statute compelling every trust to have an independent trustee, but the Master will frequently insist on one for family trusts, and the Parker reasoning makes it the prudent default. An independent trustee should be someone with no personal interest in the trust who can bring real scrutiny to decisions — and, crucially, who actually participates rather than rubber-stamping the founder’s wishes.
Personal liability — and the transparency duties that feed it
The duty of care, the authority requirement and the separation rule converge on one point: a trustee who gets it wrong is personally on the hook. A trustee can be held personally liable for loss caused by acting without letters of authority, by breaching the section 9(1) standard, or by treating trust assets as their own — and section 9(2) means a deed indemnity will not save them.
Statutory transparency duties are now part of that liability picture. Since the General Laws Amendment Act 22 of 2022, trustees must establish, keep and lodge a beneficial-ownership register for the trust with the Master under section 11A of the Act:
A trustee must— (a) establish and record the beneficial ownership of the trust; (b) keep a record of the prescribed information relating to the beneficial owners of the trust; (c) lodge a register of the prescribed information on the beneficial owners of the trust with the Master’s Office; and (d) ensure that the prescribed information … is kept up to date.
Note — Inserted by the General Laws Amendment Act 22 of 2022.
This is a personal trustee duty backed by serious penalties, and it sits alongside a separate company-side filing. For the full picture of the two registers and who counts as a beneficial owner, see beneficial-ownership registers. A trustee who wants to step back — or who can no longer meet these duties — should plan the exit through amending or terminating the trust and a proper handover, not by quietly going inactive. The beneficiaries to whom all of these duties are owed are explained under trust beneficiaries.
Frequently asked questions
Section 9(1) of the Trust Property Control Act 57 of 1988 requires a trustee to act with the care, diligence and skill reasonably expected of a person who manages another’s affairs — an objective standard. Section 9(2) makes any deed clause that tries to exempt a trustee from liability for failing that standard void, so it cannot be contracted away.
There is no blanket statutory rule forcing every family trust to appoint one, but it is strongly advisable. In Parker the SCA warned against trusts where the founder controls everything and the others are figureheads. Without genuine independence a court may treat the trust as the founder’s alter ego and disregard it. See founder, trustee and beneficiary.
Yes. A trustee who acts before letters of authority are issued, or who breaches the section 9(1) duty of care, can be personally liable for the loss — and a deed clause indemnifying the trustee against such a breach is void under section 9(2). Mixing trust assets with a trustee’s own estate, or missing statutory duties, adds to that exposure.
They are the written authorisation issued by the Master of the High Court that empowers a person to act as a trustee. A trustee may not deal with trust property until the Master has issued them — acting without them renders the acts a nullity and exposes the trustee personally, so they must be in hand before the trustees do anything.
Yes. The Master can remove a trustee in defined circumstances under the Act, and a court has a wide power to remove a trustee whose continuance is not in the interests of the trust and beneficiaries — for proven breach of the duty of care, a serious conflict, or a failure to act independently. The deed may set out further grounds.