Fiduciary duties include the following:

• Duty of loyalty: A fiduciary must act in the best interests of their beneficiary and avoid any conflicts of interest that could harm the beneficiary.
• Duty of care: A fiduciary must act with reasonable care, skill, and diligence in performing their duties.
• Duty of good faith: A fiduciary must act honestly, in good faith, and without any personal gain or advantage.
  Duty of confidentiality: A fiduciary must keep any information they receive from the beneficiary confidential, except when disclosure is required by law or authorized by the beneficiary.
• Duty to account: A fiduciary must keep accurate records and accounts of their dealings with the beneficiary, and provide regular reports on their activities.
• Duty to disclose: A fiduciary must disclose any conflicts of interest or other information that could reasonably affect the beneficiary’s interests.

In South Africa, trustees and company directors have similar fiduciary duties but they are distinct roles with different responsibilities.

Trustees have fiduciary duties towards the trust and its beneficiaries. They are required to act in the best interests of the beneficiaries, to avoid any conflicts of interest, and to exercise reasonable care and skill in the administration of the trust. Their duties are dealt with in the Trust Property Control Act.

Directors, on the other hand, have fiduciary duties towards the company and its shareholders. They are required to act in the best interests of the company, to exercise reasonable care, skill, and diligence in carrying out their duties, and to avoid any conflicts of interest. Their duties are dealt with in the Companies Act.

Failure to uphold these duties can result in legal action being taken against the fiduciary, and they may be held liable for any losses suffered by the beneficiary as a result of their breach of duty. The Trust Property Act provides for the removal of a trustee or the appointment of a co-trustee. Furthermore, if the Master of the High Court is satisfied that there is a valid concern, they may order the trustee to provide security in the form of a bond, insurance policy, or other suitable guarantee. The amount of the security will depend on the circumstances of the case and the perceived risk of loss.

Ignorance of the law is generally not a defence in South African law, including under the Trust Property Control Act. Trustees are expected to have knowledge of the Act and to comply with its provisions.

It is important for trustees to seek professional advice and guidance in fulfilling their duties, and to keep accurate records of all decisions and actions taken on behalf of the trust. This can help to mitigate the risk of liability and ensure that the trust is managed in accordance with the law.

Contact us if you need a professional to look over a trust matter and any concerns you may have.