Note especially the following clauses of the standard trust deed–
Complete or amend in the replacement trust deed as Annexure A:
2.1
3.1
4.1
6.2
6.3
7.1
7.2
7.5
7.6
7.7
11.4.1
11.5.1
11.5.3
12.2
27.1 in [ ]
29.1
29.3
1
DEED OF AMENDMENT: AGREEMENT TO AMEND DEED OF TRUST
[insert] TRUST IT821/85
I, the undersigned,
[insert] ,
in my capacity as donor of the above-mentioned trust,
and we, the undersigned,
[insert]
in our capacity as trustees of the above-mentioned trust,
and we, the undersigned,
[insert]
in our capacity as beneficiaries of the above-mentioned trust,
and by virtue of the competency we have to do so, hereby amend the deed of trust of the abovementioned trust dated [insert] (the “original deed of trust”) as set out below. We undertake to attend to
the rendering of this deed of amendment with the Master of the High Court, Pretoria. We hereby amend
and state as follows:
1
We wish to amend the original deed of trust by replacing it with a new deed of trust. Many of the
stipulations of the original trust deed have become irrelevant and impractical due to changed
circumstances.
2
The trustees are of the opinion that it is in the interest of all the beneficiaries to vary the trust
deed as well as to effect certain rectifications thereto. For the sake of clarity and convenience, a
single document is preferred and therefore certain provisions of the original trust deed are
incorporated in this deed of amendment.
3
We hereby delete the original deed of trust dated [insert] and replace it with the deed of trust
attached hereto as Annexure A.
SIGNED at _________________________ on _________________________.
________________________
…
Donor
________________________
…
Beneficiary
2007.07.19N
_________________________
….
Trustee
2
ANNEXURE “A”
TRUST DEED
_________________________ TRUST IT_____
MEMORANDUM OF AGREEMENT IN RESPECT OF A DONATION IN TRUST
between
[insert]*
Identity number [insert]*
(“the Donor”)
AND
[insert]*
Identity number [insert]*
and
[insert]*
Identity number [insert]*
and
[insert]*
Identity number [insert]*
("the trustees")
for the benefit of the trust beneficiaries contemplated in clause 6.
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INTERPRETATION
1.
1.1.1
In this trust deed, unless otherwise provided or the context otherwise requires "the trustees"
means the trustees of the trust from time to time (which
includes the trustees acting as such on date of signature
of this trust deed, and any other additional or
succeeding trustees);
1.1.2
"the trust fund"
means the assets, of any nature, including any
conditional right on property, which are administered or
determined by the trustees from time to time in terms of
this trust deed and all previous trust deeds, including
(but not limited to) the donation contemplated in clause
4, testamentary dispositions, donations, bequests, any
income derived there from, any addition thereto, any
assets acquired hereafter (in any manner) and any
substitutions;
1.1.3
"the trust"
means this trust that was established as set out in
clause 2.1 below;
1.1.4
"the trust
beneficiaries"
means any of the income and capital beneficiaries
contemplated in this trust deed;
1.1.5
"the vesting date"
means any of the following dates –
(i)
the date on which the trustees make interim
payments of capital to beneficiaries in terms of
the powers vested in them;
(ii)
such date determined in writing by the trustees
in their sole discretion;
1.1.6
"the Act"
means the Trust Property Control Act, Nr 57 of 1988);
1.2
words importing the singular includes the plural and vice versa;
1.3
any reference to one gender shall include the other gender;
1.4
any reference to natural persons shall include partnerships, trusts and legal persons, and
vice versa;
1.5
any word or phrase described in a particular clause, carries the same meaning in any
other clause;
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1.6
headings of the clauses are used for easy reference and are not taken into consideration
for the purpose of interpreting the contents of this trust deed;
1.7
references to the provisions of any law shall include such provisions as amended, reenacted or consolidated from time to time in so far as such amendment, re-enactment or
consolidation applies or is capable of applying to any provision of this trust deed; and
1.8
the expressions “trust fund” and “capital” shall include, without being restricted thereto
and without derogating from the ordinary meaning thereof, any capital gains due to a
disposal or deemed disposal (in terms of any applicable law) of the trust fund or any
portion of the trust fund.
ESTABLISHMENT OF THE TRUST
2.1
It is recorded that the trust was originally established with a donation of R* [insert]
(*[insert] rand) on *[insert] and was since then, on *[insert], registered with the Master
of the High Court, *[insert], South Africa, under registration number IT *[insert]. The
trustees hereby agree to manage and administer the trust subject to the provisions and
conditions of this trust deed.
2.2
The trustees agree to exercise their powers and fulfil their obligations in order to achieve
the objectives of this new trust deed.
NAME
3.1
The name of the trust was, when registered as contemplated in clause 2.1, *[insert].
3.2
Notwithstanding the provisions of 3.1, the trustees are entitled to change the name of the
trust at any time.
DONATION
4.1
It is recorded that the trust was originally established with a donation of *R100,00 (one
hundred rand) for the benefit of the beneficiaries.
4.2
The donation contemplated in 4.1 immediately vested in the trustees for the benefit of the
trust beneficiaries and the trustees shall administer the trust fund subject to the terms
and conditions and with the powers and obligations contained in this trust deed.
OBJECTIVES OF THE TRUST
5.1
The principle objective of this trust is to create a trust fund to be administered by the
trustees for, and for the benefit of, the trust beneficiaries subject to the provisions of the
trust deed.
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5.2
Pursuant to the principal objective contemplated in 5.1, the objective of the trust is
furthermore to strengthen and extend the trust fund and to use it for the benefit of the
trust beneficiaries by the trustees accepting donations, investing assets and exercising
their powers in terms of this trust deed.
TRUST BENEFICIARIES
6.1
The trust beneficiaries shall include any of the income and capital beneficiaries
contemplated in clause 6.2.
6.2
The income and capital beneficiaries include any of the following:
6.2.1
the said *[insert] (identity number *[insert]);
6.2.2
*[insert] (born *[insert]) (income beneficiary only);
6.2.3
the children born and yet to be born of *[insert] (identity number *[insert]);
6.2.4
the lawful descendants born and yet to be born (including any adopted or
legitimised child or children) of the person contemplated in clause 6.2.1;
6.2.5
the trustees of any trust created in terms of the provisions of clause 27.1;
6.2.6
the trustees of the [insert] Trust IT [insert]; and
6.2.7
the trustees of any testamentary trust created in the will of *[insert] (identity
number *[insert]), after his death.
6.3
The trustees shall have the sole right in their capacity as trustees to determine under
written document whom the beneficiaries shall be between the persons contemplated in
clauses 6.2.1 to *6.2.7 and in what proportion, which proportion need not be equal, the
trustees shall distribute the trust capital and income to beneficiaries and furthermore to
impose any condition to such determination or distribution. The trustees shall have the
right, in their discretion, to withhold allocation of benefits to one or more beneficiary. The
trustees are entitled to allocate benefits to the beneficiaries as frequently as they deem
fit.
6.4
Notwithstanding any provisions to the contrary in this trust deed, no trustee shall at any
time qualify as a beneficiary of this trust or receive any benefits while he/she is
competent to dispose of trust property for his/her own benefit or for the benefit of his/her
estate in the spirit and wording of section 3(3)(d) of the Estate Duty Act, number 45 of
1955, or any later amendment thereof.
APPOINTMENT AND SUBSTITUTION OF TRUSTEES
7.1
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The existing trustees are INITIAL
6
7.1.1
*[insert] (identity number *[insert]);
7.1.2
*[insert] (identity number *[insert]); and
7.1.3
*[insert] (identity number *[insert]).
7.2
There shall at all times be not less than *three trustees: Provided that if the number of
acting trustees is less than the prescribed number, the remaining trustee or trustees, as
the case may be, shall be entitled to exercise the powers of the other trustees for the
maintenance and administration of the trust fund until another trustee has been
appointed.
7.3
If, at any given time, the number of acting trustees is less than the prescribed number
and no other person is appointed as trustee in terms of the trust deed, the remaining
trustee or trustees, as the case may be, shall appoint an additional trustee or trustees, as
the case may be (within a period that is reasonable in the circumstances) after the
vacancy occurred.
7.4
If, at any given time, the terms of clause 7.3 is not adhered to and an additional trustee
or additional trustees are not appointed, the accountants of the trust shall call a meeting
for all interested parties concerned (to be determined by the accountants), and at that
meeting a trustee or trustees shall be appointed by means of majority vote.
7.5
During his lifetime *[insert] (identity number *[insert]) shall be entitled to appoint
additional trustees or a substitutive trustee and after his death [insert] (identity number
[insert] *) shall be so entitled.
7.6
[insert] and [insert] shall have the right to appoint substitutive trustees in any document
*[jointly]*, including a will.
If no such decision has been taken jointly, the surviving
trustee shall be entitled to make such an appointment.]
*[7.7
If it happens that there is no serving trustee alive, a director of the firm *[insert]*
nominated by the board thereof, shall act as the sole trustee up and until the time that
he/she is substituted in terms of the provisions of the trust deed.
ALTERNATIVE TRUSTEES
8.1
A trustee is entitled to name any other person as an alternative to act on his/her behalf
during a period of absence or incapacity to act as a trustee, subject to approval by the
remaining trustee or trustees, as the case may be, which approval shall not
unreasonably be withheld.
8.2
An alternative trustee has the same duties, powers and liabilities as the trustee in whose
place he/she is acting.
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TERMINATION OF OFFICE OF A TRUSTEE
9.1
The office of a trustee shall terminate ipso facto and shall be vacated -
9.1.1
if he/she resigns by written notice; or
9.1.2
if the trustee becomes incapable to handle his/her own affairs, or if he/she is
detained in terms of any act as a patient in an institution, or if he/she is detained
as a President's patient; or
9.1.3
9.2
if the trustee is discharged from office by the Master of the High Court.
Someone who resigns as trustee must give written notice to that effect to the Master
concerned (as contemplated in the Act), and to his/her co-trustee or -trustees, as the
case may be, and to the trust beneficiaries which has been determined.
ACTIONS OUTSIDE THE REPUBLIC OF SOUTH AFRICA
10.
The trustees are entitled to exercise all powers, rights, competencies and obligations in terms of
the trust deed or otherwise, in any place inside or outside the Republic of South Africa.
MEETINGS OF TRUSTEES AND RESOLUTIONS
11.1
The trustees adopt the procedures to be followed for convening and conducting
meetings, unless otherwise provided for in this clause 11.
11.2
Any trustee is at all times entitled to convene a meeting of trustees by giving reasonable
prior written notice to all trustees, which meeting shall only in exceptional circumstances
be held at a venue other than the venue from where the main business of the trust is
conducted.
11.3
The required quorum for any meeting of the trustees shall be the majority of serving
trustees in office from time to time:
trustees, the quorum shall be 2 (two).
11.4
11.4.1
Provided that if there are only 2 (two) serving
All decisions and actions of the trustees shall be taken if there are more than 2 (two) serving trustees, on a majority vote *[subject
thereto that if [insert] (identity number [insert] *) during his/her lifetime does not
vote in favour of an allocation to a trust beneficiary (excluding himself) or the
disposal of the main business of the trust, or the largest portion of the assets of
the trust, a decision to such effect shall be null and void]*;
11.4.2
if there are only 2 (two) serving trustees, on a unanimous decision subject to
clause 11.5.3.
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11.5.1
If a deadlock or dispute arises between the trustees *[(but without derogating
from the saving provision in clause 11.4.1 and subject to clause 11.5.3)]* the
matter shall be submitted for a ruling to an attorney or advocate to be decided
upon by way of unanimous decision by the trustees or, failing such unanimous
decision, to an attorney or advocate to be nominated by the acting Chairperson
of the Law Society of South Africa.
11.5.2
The attorney or advocate contemplated in clause 11.5.1 who shall rule on the
matter, determines the procedure to be followed and his/her decision is final and
binding on all the trustees.
11.5.3
Unless the trustees have decided otherwise in writing, *[but subject to clauses
6.4 and 11.4.2], [insert] (identity number [insert] *) shall during his/her lifetime
be chairperson at the meeting of trustees and shall have a second and deciding
vote if the votes are tied.
11.5.4
A written resolution signed by all the trustees has the same legal standing as a
resolution passed at a properly constituted meeting.
11.6
The trustees shall meet as is reasonably necessary and shall decide upon the use or
allocation of income earned by the trust during a preceding financial year. Any decision
taken in respect of the use or allocation of income, shall be retroactive to the last day of
the relevant financial year.
ADMINISTRATION OF THE TRUST BY THE TRUSTEES
12.1
Subject to consistent compliance with the provisions and conditions of the trust deed, the
trustees are entitled in their administration of the affairs of the trust to follow such policy
guidelines and lay down procedural and administrative steps as they from time to time
deem desirable.
12.2
All contracts, deeds, cheques and other documents signed or executed on behalf of the
trust, must be signed or executed in the way determined by the trustees from time to time
and failing such determination [insert] (identity number [insert]*) shall have authority to
sign or execute all the said documents.
12.3.1
The accounts of the trust may be prepared either by a person practising as a
registered Public Accountant and Auditor or by any person entitled to act as
accountant of a close corporation in terms of the Close Corporations Act, Nr 69
of 1984, which person shall be appointed by the trustees from time to time
(hereinafter referred to as the accountant of the trust).
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12.3.2
The trustees shall procure that the accountant of the trust, as soon as possible
after the end of February of each year, (or such other day as determined by the
trustees from time to time), compile the financial statements in accordance with
general accepted accounting practice, including a clear indication of the capital
of the trust and all additions thereto, of all receipts and payments made by the
trustees and of the manner in which the trust fund was held and invested.
12.3.3
Each trust beneficiary or his/her legal advisor is, on request, entitled to a true
copy of such financial statements.
POWERS AND COMPETENCIES OF TRUSTEES
General
13.1
Subject to any specific powers and competencies granted to the trustees in accordance
with this trust deed -
13.1.1
the trustees have all those powers and competencies necessary to be able to
deal with the trust's assets in order to control and manage the trust fund, as the
trustees, in their discretion, deem expedient and necessary for the best
advantage of the trust and the trust beneficiaries; and
13.1.2
13.2
the trustees shall have the same powers as a Board of Directors of a company
as set out in annexure 2 of the Companies Act, Nr 61 of 1973, mutatis mutandis.
Subject to the provisions of 13.1, and without prejudice to the generality thereof, the
trustees may exercise the following additional powers and competencies:
Opening of bank accounts and investments
13.2.1.1
To open any account (individually or with someone else) with any bank
as contemplated in the Banks Act, Nr 94 of 1990, or a mutual bank as
contemplated in the Mutual Banks Act, Nr 124 of 1993, or a financial
institution as contemplated in the Financial Institutions (Protection of
Funds) Act, Nr 28 of 2001, to deposit money in such account, to draw
cheques thereon, to issue bills of exchange and guarantees against it,
and to deliver for collection bills of exchange in favour of the trust to the
institution where such account has been opened.
13.2.1.2
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To draw, accept, and endorse bills of exchange and promissory notes.
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13.2.1.3
To invest the money included in the trust assets in their discretion as
they may deem expedient from time to time, including in, but not limited
to, secured or unsecured loans, bonds, debentures, government or
municipal stock, unit trusts, any collective investment scheme,
investment consortiums and both shares listed on a stock exchange or
shares in any other private or public company.
13.2.1.4
To change, realise, invest or re-invest any investments contemplated in
13.2.1.3.
Loans and security
13.2.2.1
To grant loans, with or without interest, and with or without security, and
subject to the conditions to be determined by the trustees in their sole
discretion, to the trust beneficiaries and other persons (including any
trust contemplated in clause
contemplated in clause 7.1.
13.2.2.2
6.2),
including
the
first
trustees
To borrow money for the trust's purposes, with or without interest and
with or without security, upon such terms as may be agreed upon with
the lender.
13.2.2.3
To employ the money of the loans contemplated in clause 13.2.2.2, and
without limiting the general application thereof, to acquire assets, to
provide working capital for any farming operation, business or other
activities of the trust, to develop and exploit any trust asset, to erect
buildings on any trust asset, to provide for taxes, to spend money in
order to protect trust assets against decay, to improve trust assets or to
divide trust properties.
13.2.2.4
To pledge, mortgage, or otherwise burden any assets of the trust.
13.2.2.5
To guarantee, with or without remuneration, the fulfilment of contracts or
obligations of any person or trust.
13.2.2.6
To demand security in respect of any transaction entered into by the
trust.
13.2.2.7
To acquire membership in the name of the trust and to use any credit
facilities at any agricultural or co-operative company or at any other
association, and to mortgage, hypothecate or pledge the trust property
or part thereof.
Actions and lawsuits
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13.2.3.1
To collect, receive, recover and claim on behalf of, in the name of, and
for the account of the trust, in a competent court of law, any debts or
amounts, goods or property, of any nature, which is due or payable to
the trust or which belongs to the trust.
13.2.3.2
To arrange, settle, accommodate, or submit to arbitration all accounts,
debts, claims, actions, disputes and affairs with any person, trust or
body.
13.2.3.3
To issue valid and effectual receipts and acquittance for any amount or
property recovered on behalf of the trust.
13.2.3.4
To act, with or without remuneration, as surety and co-principal debtor
for the due performance of any duties by others and to pass mortgage or
notarial or other bonds and to grant pledges over the property of the
trust: Provided that the said suretyship must be to the advantage of the
trust or to one or more of the trust beneficiaries.
Legal action
13.2.4.1
In respect of any matter concerning the trust or trust fund, to institute and
continue legal proceedings, actions and applications, to defend all
actions, arbitrations and other proceedings, to take matters on appeal or
revision, and to withdraw or settle any legal proceedings, actions or
applications.
13.2.4.2
To
appoint
and
remunerate
attorneys,
advocates,
agents
and
representatives for the purposes of 13.2.4.1.
13.2.4.3
To attend any meeting of creditors of any company, trust or other
institution owing money or property to the trust, whether or not it is
insolvent, in liquidation, under judicial management, or in terms of the
Agricultural Debt Management Act, Nr 45 of 2001, or otherwise, and to
prove any claim of the trust on such a meeting or meetings and to vote
on all matters that are put before the meeting, and to vote on, or support
the election of curators, liquidators, judicial managers, or administrators,
and to exercise, in general, all the powers which the trust, as a creditor,
is entitled to.
Letting
13.2.5.1
To enter into leases as lessor or lessee, or to enter into a partiarian
lease, by way of public auction, private treaty or public tender.
Contracts
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13.2.6.1
To enter into any contracts, whether it has been envisaged in the trust
deed or not, and to effect any purchase or any other form of acquisition,
or any sale or any other form of disposal or alienation of movable or
immovable property by way of public auction, private treaty or public
tender.
13.2.6.2
To negotiate and determine all the terms and conditions of any contracts
contemplated in clauses 13.2.5.1 and 13.2.6.1.
13.2.6.3
To cancel or renew any contract contemplated in clauses 13.2.5.1 and
13.2.6.1 and to exercise the rights of the trust in respect of and resulting
from such contract, including, but not limited to, the granting of consent
in terms of such a contract.
13.2.6.4
To make the necessary declarations in respect of the affairs of the trust,
whether in terms of an act of Parliament or not.
13.2.6.5
For the purposes of this clause 13.2.6 any reference to land or
immovable property includes all rights in respect of such properties.
13.2.6.6
To enter into contracts with trustees (in their personal capacity) and trust
beneficiaries in respect of any matter that otherwise would have been
within the powers of the trustees, notwithstanding the fact that the terms
and conditions of such contracts are more beneficial towards any trust
beneficiary or trustee than towards a third party.
Business activities
13.2.7.1
To start, purchase or obtain in any way any business or farming
operation and to conduct any business or farming operation.
13.2.7.2
To obtain all licences and authorisations which the trustees deem fit and
necessary in respect of any business or farming operation.
13.2.7.3
To conduct any business or farming operation contemplated in clause
13.2.7.1 in the name of the trust, or in partnership or association with
anyone else.
Appointment and remuneration of representatives and advisors
13.2.8.1
Subject to clause 13.2.4.2, to appoint or dismiss attorneys, advocates,
other advisors or representatives for or in connection with the exercising
of any power of the trustees and to pay the resulting remuneration from
the trust fund.
Development and use of trust assets
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13.2.9.1
To develop, subdivide, or dispose of any immovable property and to
open necessary registers or incorporate a company, to the extent that
the provisions of the Sectional Titles Act, Nr 95 of 1986, the Alienation of
Land Act, Nr 68 of 1981, the Property Time-sharing Control Act, Nr 75 of
1983, the Share Blocks Control Act, Nr 59 of 1980, or any other similar
or substitutive act may find application.
13.2.9.2
To make all applications and obtain the authorisation which is
necessary, or which the trustees deem fit, for the purposes contemplated
in clause 13.2.9.1, including, but not limited to, consent for the removal
of restrictive conditions of title, rezoning or subdivision.
13.2.9.3
To obtain any movable goods and immaterial property rights and to grant
licences and any other possible rights in respect of such property.
13.2.9.4
To prospect and grant exploitation rights to third parties, or to exercise
such exploitation rights in respect of any land included in the trust assets
or land over which the trust has these rights.
13.2.9.5
To grant or obtain servitudes in respect of any immovable property
included in the trust assets.
13.2.9.6
Subject to the provisions of this clause 13.2.9, to alter, improve or
demolish any building of the trust.
13.2.9.7
To give occupation, with or without remuneration, to any trust beneficiary
over any immovable property of the trust, or over which the trust enjoys
any rights.
Donations
13.2.10.1
To give donations from the trust fund for charity or for any other
purposes.
13.2.10.2
To accept donations or bequests from anyone on behalf of the trust,
subject to the terms and conditions of this trust deed, and subject to the
terms and conditions of such a donation or bequest.
13.2.10.3
To change or delete any restrictive term, condition or power granted to
the trustees, or to enter into a redistribution agreement with other heirs,
to provide for the acceptance of any testamentary bequests if such a
change, deletion or agreement is to the advantage of the trust and the
trust beneficiaries.
Companies, close corporations and partnerships
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13.2.11.1
To incorporate companies and close corporations (if it becomes legally
permissible) with such objectives as determined by the trustees, and to
exercise the right to vote connected with such shares or interest vested
in the trustees, and, in general, to do everything in respect of such a
company or close corporation as may be done by a shareholder or
interested party in terms of the statutory provisions applicable to
companies and close corporations.
13.2.11.2
In the event of a company, collective investment scheme or a unit trust
scheme prohibiting, in terms of its articles or regulations, the transfer of
shares or units into the names of the trustees as such, the shares or
units shall be registered in their personal names or in the names of their
representatives and shall be held as nominees on behalf of the trust.
13.2.11.3
Included in the objectives of incorporating a company or close
corporation, or obtaining shares or interests in such a company or close
corporation as contemplated in clause 13.2.11.1, is the objective to
acquire the whole or a part of the trust fund for any trust beneficiary.
13.2.11.4
Consideration for the sale of the trust fund, or any part thereof, to any
company incorporated in terms of clause 13.2.11 may consist entirely, or
partially, of fully paid debentures, debentural securities or any other
securities of the company and may be credited as fully paid up and may
be allocated to or may vest in any way in the trust and shall be regarded
as capital of the trust fund.
13.2.11.5
To enter mutatis mutandis into partnerships for the purposes of clause
13.2.11.1.
13.2.11.6
To be entitled, either solely or in conjunction with other persons, to
cause any reorganisation, consolidation, merger or readjustment of the
capital value of any of the said shares or of the shares of any company
which may at any time be held as portion of the trust fund, and to receive
and continue to hold as portion of the trust fund any assets arising out of
any such reorganisation, consolidation, merger or readjustment and
accruing by reason of their participation in any such matters.
13.2.11.7
To exercise any of the rights or to sell or convert into money any of the
rights of conversion or subscription attached to any shares which is held
as a portion of the trust fund, but, whenever investments are made when
exercising the rights of conversion or subscription, the shares or other
rights so received are deemed to form part of the trust fund.
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13.2.11.8
To be entitled from time to time to use any voting rights attached to any
shares to cause such change to be made to the board(s) of directors or
the officers of any of the companies involved what they may consider to
be in the best interest of the trust fund and to be entitled to appoint or
cause to be appointed either one or more of themselves as such
directors or officers or cause some other person or persons to be so
appointed on the basis that such persons shall act as nominees for the
trustees.
13.2.11.9
Any trustee shall be entitled to keep, for his/her own benefit, any salary,
director's fee or similar remuneration from any such company for
services rendered to such company.
13.2.11.10
Insofar as it is legally permissible, all provisions of this clause 13.2.11
are mutatis mutandis applicable to close corporations.
Policies
13.2.12.1
To take out life assurance policies on the lives of the founder, trustee or
any trust beneficiary, or to accept a cession of such policies to the trust,
to pay the premiums on the policies and to maintain such policies, or to
deal with it in any way whatsoever.
13.2.12.2
If an assured person under a policy contemplated in clause 13.2.12.1,
die during the existence of the trust, the proceeds of the relevant policy
shall form part of the trust property.
Land Bank loans
13.2.13.1
The trustees have the power and right to apply to the Land and
Agricultural Bank of South Africa (hereinafter referred to as the Land
Bank) for a loan, or loans against the security of the trust assets,
movable as well as immovable, and on those conditions as determined
by the Land Bank and as accepted in writing by the trustees.
13.2.13.2
Since it is a condition of any loan application (contemplated in clause
13.2.13.1) to the Land Bank that at least one of the trustees must be a
bona fide farmer who permanently lives on and works the property being
offered as security, this prerequisite must be complied with for as long as
it is a requirement. Should a trustee at any stage no longer comply with
the current requirements he/she must immediately advise the Land Bank
and simultaneously furnish the name and address of that trustee who will
in future comply with the said requirement. The new trustee will confirm
the situation by way of a sworn affidavit to be delivered to the Land
Bank.
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13.2.13.3
The trustee contemplated in clause 13.2.13.2, shall, if requested by the
Land Bank, bind himself, jointly or severally, as the case may be, as
surety and co-principal debtor for the due compliance of the obligations
under the Land Bank mortgage bond and the said trustee shall remain
bound until such time when the Land Bank shall release the said trustee,
or the obligations in terms of the mortgage bond have been complied
with.
13.2.13.4
The trustee complying with the requirement contemplated in this clause
13.2.13 is obliged, if the Land Bank so requires, to ensure his/her life at
the expense of the trust in terms of the Lank Bank insurance scheme
which has the effect that the mortgage bond will be paid in full, or
partially, on the death of the said trustee. The trustee shall consent to
the required insurance premium payable being included in the
compulsory annual repayment as calculated by the Land Bank in respect
of the said mortgage bond. The benefit arising from the said insurance
is part of the trust capital and shall not benefit the insured trustee
personally.
Administration costs
13.2.14.1
To pay from the trust fund any costs incurred in the administration of the
trust.
INTERESTS OF THE TRUSTEES
14.
No trustee shall be disqualified by his/her office from contracting with the trust, nor shall any
contract entered into by or on behalf of the trust, in which any trustee is interested, be declared
null and void: Provided that such trustees shall, prior to entering into such a contract, disclose in
writing to their co-trustees their interests in such a contract.
APPLICATION OF INCOME
15.
The trustees are, in their own discretion, entitled -
15.1
to retain the income of the trust in the trust;
15.2
to pay and apply, in their sole discretion, the income of the trust assets for the due
maintenance, education (including, without restriction, schooling, tertiary education and
career training), welfare, support, advancement, leisure, clothing, medical treatment and
general welfare of the trust beneficiaries;
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15.3
to distribute from the yearly net income of the trust, any amount (the value of which, in
the discretion of the trustees, may be an amount between no amount at all and the total
yearly net income) to one or more of the income beneficiaries in such ratio as the
trustees may determine, after which the said income beneficiaries are entitled to deal
with the said income in their free and sole discretion;
15.4
to apportion income of the trust to any trust beneficiary without payment or transfer of
such income to the said trust beneficiary, which apportioned and allocated income is held
separately in trust for such beneficiary, whereupon the trustees are entitled to deal with
such income as they deem fit and to pay or deliver such income to the trust beneficiary at
a later stage;
15.5
to pay the assessed tax from the income of the trust, if the founder is assessed for
income in respect of any income of the trust and to reimburse the founder if the founder
has paid the tax (for purposes of which the assessed tax shall mean the difference
between the tax assessed on the founder's income with inclusion of the income
contemplated in this clause 15.5 and the tax assessed with exclusion of such income);
15.6
to apply income of the trust for investment payments, life assurance or annuity premiums
in respect of policies on the life of trust beneficiaries, trustees or officials of the trust and
to deem, in their discretion, such payments or premiums as either an expenditure of the
trust, or an accrual, allocation or compensation to the insured of a cash amount equal to
the sum of the payments or premiums, as the case may be;
15.7
to pay from the income of the trust all costs and expenses legally incurred in respect of
the administration of the trust (including their remuneration and any income tax payable
by them in their representative capacity in respect of any income of the trust);
15.8
to determine whether any amount received by the trust or which may accrue to the trust,
is income or capital;
15.9
to add any surplus income to the trust capital;
15.10
to decide, in the case of a minor, on a person to whom any money or any asset shall be
paid or transferred on behalf of the minor, and a receipt signed by such a person shall be
deemed legal and shall serve as proper proof of payment or transfer to such a
beneficiary.
APPLICATION OF CAPITAL
16.1
16.1.1
The trustees are, in their own discretion, entitled to pay any payment which they are entitled to pay from income in terms of the
trust deed from the capital of the trust fund if sufficient funds from the trust
income are not available;
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16.1.2
to make a payment either in cash or in specie (meaning a capital asset other
than cash money) or partly in cash and partly in specie, whenever a portion of
the trust fund is paid or transferred to a trust beneficiary.
16.2
Subject to any provision to the contrary in this trust deed, no capital beneficiary shall be
entitled to receive delivery, cession or transfer of trust property until he/she has reached
the age of 25 (twenty five) years.
16.3
The provisions in respect of income and income beneficiaries contemplated in clause 15,
shall be applicable, mutatis mutandis, in respect of the capital of the trust and of the
capital beneficiaries.
DUTIES OF TRUSTEES
17.
Subject to common law or any statutory obligations attached to the office of trustee, the trustees
are obliged -
17.1
to lodge a notarial certified copy of the trust deed at the office of the Master of the High
Court;
17.2
to act as trustee only after they have received from the Master of the High Court the
necessary written authorisation to act as such;
17.3
to open, in compliance with the Act, a banking account in the name of the trust and to
deposit all monies received by the trust into such account;
17.4
to take possession of and hold all the assets;
17.5
to keep the trust property separately at all times and whenever applicable to register it
separately, for purposes of always being identified as such;
17.6
not to dispose of trust assets for their own advantage or to the advantage of their estate
and to act continuously with care and consideration as is reasonably expected of a
person who handles the affairs of another.
PERSONAL LIABILITY OF TRUSTEES
18.1
No trustee shall personally be liable for any loss sustained by the trust, notwithstanding
the reason for such loss, except if the reason is due failure to act with the degree of due
care, diligence and expertise which is reasonably expected of a person who handles the
affairs of another.
18.2
No trustee shall be liable for any dishonest action by a co-trustee, unless collusion took
place between the trustees.
SECURITY
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19.
All original and subsequent trustees (jointly and severally) are exempted from furnishing security
to the Master of the High Court (or to any other person or institution in terms of the Act or any
other legislation which may now be or hereafter become of force and effect) in connection with
the trust, protection of trust money or proper fulfilment of his/her duties as trustee.
PAYMENT TO MINORS
20.1
Any monies payable to or on behalf of or for the benefit of any beneficiary while such
beneficiary is still a minor, need not be paid or handed over to the Guardian's or any
applicable statutory fund.
20.2
While any beneficiary is a minor, the trustees may pay and hand over to his/her parent or
guardian or to any person in whose legal custody that beneficiary is, all monies due to
such beneficiary for his/her maintenance in terms of this deed and on acquittance from
that person shall be a valid and legal discharge to the trustees in respect of the monies in
question.
EXCLUSION OF COMMUNITY OF PROPERTY
21.
All benefits which any beneficiary may receive in terms of this trust deed, shall at all times and for
all purposes be excluded from any community of property or any community of profit and loss or
any accrual in terms of the Matrimonial Act, Nr 88 of 1984.
SUSPENSION OF BENEFICIARY'S CONTINGENT RIGHTS
IN THE EVENT OF CESSION, ATTACHMENT OR INSOLVENCY
22.1
The trust assets and/or income to which any beneficiary may become entitled under the
provisions of this trust deed shall not, prior to distribution or payment thereof by the
trustees to such a beneficiary, be capable of being ceded, assigned, mortgaged or
pledged by such beneficiary or be attachable by any creditor of such beneficiary or vest
in his/her trustee on insolvency.
22.2
22.2.1
If, prior to distribution of the trust assets or payment of income as aforesaid being made
to any beneficiary he purports to or attempts to cede, assign mortgage or pledge such trust assets
and/or income of any part thereof; or
22.2.2
he/she commits or suffers any act, omission, default or process of law whereby
such trust assets and/or income or any part thereof would, but for the provisions
of this paragraph, become vested in, attachable by or payable to any other
person or persons; or
22.2.3
he/she commits an act of insolvency, or is declared insolvent, or assigns his/her
estate for the benefit of his/her creditors,
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then, in each case, the contingent right of that beneficiary to any share of the trust assets
and/or income shall be suspended and shall remain vested in the trustees, subject to the
provisions of clause 22.4.1 hereof.
22.3
The trustees shall in any of the events contemplated in clause 22.2 hereof and subject to
the further conditions set out in clause 22.4.1 and 22.4.2 hereof, apply the trust assets
and/or income for the maintenance of that beneficiary or his/her spouse or for the
maintenance of the lawful children of that beneficiary.
22.4.1
On the rehabilitation of that beneficiary or this discharge of that beneficiary from
insolvency or the ceasing of the possibility of attachment or the discharge of the
occurrence giving rise to the suspension in terms of clause 22.2 hereof, the
suspension shall terminate forthwith and the trustees shall in their sole discretion
pay the capital and any undistributed income to that beneficiary or his/her
spouse and/or his/her children.
22.4.2
Where that beneficiary dies and none of the events set out in clause 22.4.1
hereof has taken place, then the right of the beneficiary which has been so
suspended, shall pass to his/her testate or intestate heirs as the case may be.
DISCRETION OF TRUSTEES
23.
The trustees have an absolute and unfettered discretion in terms of this trust deed and the
trustees are not expected to show cause or proof of qualification to any trust beneficiary in
respect of the manner in which a discretion has been exercised.
SEPARABILITY AND DIVISIBILITY
24.
The terms and conditions of this trust deed are separable and divisible and any provision which is
unenforceable, shall be deemed pro non scripto.
REMUNERATION OF TRUSTEES
25.1
The trustees are entitled to remuneration for their services rendered in terms of the trust
deed, at a tariff they deem to be fair: Provided that such remuneration does not exceed
a market related remuneration.
25.2
Any attorney, accountant or other professional person acting as a trustee, shall be
entitled to charge normal fees for professional services rendered as if he/she was not a
trustee of the trust at the time of rendering of such services.
PROVISIONS IN RESPECT OF TRUST BENEFICIARIES
26.1
Due to the fact that the trust fund vests in the trustees, the beneficiaries shall not have a
personal right in respect of the trust property and they shall not have any right, during the
existence of the trust, to deal in any way whatsoever with the trust property.
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26.2
The trustees are entitled, in their discretion, to transfer any of the trust assets or trust
income to the trust beneficiaries even before the termination of the trust and the said
beneficiaries are then entitled to deal with such property or income as their own
exclusive property.
CREATION OF FURTHER TRUSTS
27.1
The trustees are, subject to any other terms of this trust deed, entitled to create a further
trust or trusts in respect of any income or distribution of trust capital for the exclusive
benefit of the said beneficiary, *[the parents or spouse of such a beneficiary, or the lawful
descendants of such beneficiary, or the spouse of the said descendants] and to pay such
income or contribute such capital to the said further trust or trusts, as the case may be.
27.2
The duration of such trust or trusts shall be determined by the trustees.
27.3
A trust or trusts contemplated in clause 27.1 is mutatis mutandis subject to the same
terms and conditions contemplated in this trust deed.
27.4
At least one of the first trustees of the trust or trusts contemplated in clause 27.1 shall be
one of the trustees of this trust who created such further trust or trusts.
AMENDMENT OF THE TRUST DEED
28.
The founder and the trustees, and after the death of the founder, the trustees jointly, shall be
entitled to revise or amend the trust deed in their own discretion: Provided that such revisions
and amendments are in writing.
TERMINATION OF THE TRUST
29.1
The trust shall terminate on a date, after the vesting date, to be decided upon by the
majority of the trustees in writing *[provided that while [insert] (identity number [insert] *)
is a trustee of the trust, such termination shall be invalid unless he/she agrees to such
termination]*.
29.2
If, on the vesting date, the capital of the trust has to be transferred to a beneficiary
younger than 25 (twenty five) years, but said beneficiary has not yet reached the age of
25 (twenty five) years, the trust in respect of such beneficiary continues until he/she has
reached the age of 25 (twenty five) years before any capital shall be transferred to
him/her: Provided that the trustees, in their discretion, shall be entitled to prolong or
shorten the said continuation of the trust and shall be entitled to decide on any earlier or
later date for the transfer of the capital.
29.3
If no beneficiary is alive at the vesting date of the trust, the trust fund shall be divided
between those that qualify as the intestate heirs of [insert].
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ACCEPTANCE
30.
The trustees contemplated in clause 7.1 accepted their appointment as trustees of the trust, the
donation and all the benefits granted in terms of this and all previous trust deeds.
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