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Change of name of trusts – a reply

3 August 2006

  1. The article Change of name of trusts (hereinafter referred to as "the discussion"), written by Allen West and published on 27 July, ended with a request for opinions thereon from readers.

  2. Firstly, I consider it necessary, for the sake of clarity, to make the following comments and/or observations on certain crucial aspects of the discussion:
    1. Section 44 of the Companies Act, 1973, provides, amongst other things, for a change of name of a company, the issue by the Registrar of Companies of a certificate of the change of the name of such company and (for the purposes of the Deeds Registries Act, 1937) for a Registrar of Deeds to "make in his register all such alterations as are necessary by reason of the change of the name of the company."

    2. Section 4 (2) of the Trust Property Control Act, 1988, requires that, when a trust instrument which has been lodged with the Master is varied, the trustee shall lodge the amendment or a copy thereof, certified as a true copy by a notary or other person approved by the Master, with the Master. In my opinion, the latter amendment includes a change of name of a trust.

      There is no provision whatsoever in the Trust Property Control Act, 1988, for the issue by a Master of a certificate of change of name of a trust and/or, as a consequence of such change, for a Registrar of Deeds to make in his register all such alterations as are necessary by reason of the change of the name of the trust.

      Therefore, subject to paragraph 3 hereof, I support the submission by Allen West for an appropriate amendment to the Trust Property Control Act, 1988, with a view to prevent the inconvenience resulting from the latter shortcomings.

  3. Secondly, I address Allen West's statement to the effect that, except for Registrars' Conference Resolution 13 of 2004, "it is still maintained that there is no enabling legislation sanctioning the change of name of a trust":

    1. As is evident from paragraph 1 above, it is important to draw a clear distinction between changing a name, on the one hand, and making alterations/endorsements resulting from a change of name, on the other hand.

    2. Although "the change of name" and "the mechanism to record the change of name" are used interchangeably in the discussion, it is clear from a perusal of the discussion as a whole that, by "change of name", Allen West means making alterations/endorsements resulting from a change of name only.

    3. Whereas he concedes that "Section 93 of the Deeds Registries Act 47 of 1937, however, does provide for the mechanism to record the change of name of a person or partnership" and that "In terms of section 2 of the Deeds Registries Amendment Act 9 of 2003, a definition of "person" was included in the Deeds Registries Act, defining a trust as a person", it is not understood why Allen West maintains that "[e]xcept for the Conference resolution, it is still maintained that there is no enabling legislation sanctioning the change of name of a trust."

    4. RCR 13 of 2004 is not, and has never been intended to be, "enabling legislation". RCR 13 of 2004 merely confirms that the provisions of section 93 of the Deeds Registries Act, 1937, as amended, which section is, undoubtedly, a legislative enablement, can be invoked to make endorsements resulting from a change of name of a trust and sets out the nature of the proof which is required in support of the relevant applications.

    5. It is submitted that, the omission, in section 93 of the Deeds Registries Act, 1937, to spell out the nature of the proof of the change of name contemplated therein, does not, per se, detract or subtract from the fact that the section enables applications and endorsements arising from changed names. Further, it is not uncommon for the legislature to require proof of facts without spelling out the nature of such proof. Moreover, it is noteworthy that the said section 93 does not apply to trusts only but to partnerships, natural persons and juristic persons.

  4. Finally, and, for the sake of completeness, I emphasise that my support for amendments to the Trust Property Control Act, 1988 is not based on a lack of a legislative enablement, providing for making alterations/endorsements resulting from a change of name of a trust, but on the need for a considerably more convenient mechanism, running parallel to an existing mechanism, to achieve the same result.

Thabo Nqhome
28 July 2006


Reader Comments: 1
Gerhard van der Merwe 03/08/2006:

Perhaps the solution would be to request fresh letters of authority when the trust name has been changed. The number would be the same, ergo there would be proof that it is the same trust. I can therefore see no impediment to the registrar updating his records upon application by the trustees, who will supply certified copies of the fresh letters of executorship, by endorsement as is the case with a partnership. A trust is at the end of the day a body of persons who manage a fund or assets on instruction of another for a specified purpose or for the benefit of specified persons. We must be careful not to overly regulate where principles which can be flexibly applied already exists, because such regulations almost always create their own problems, as by removing flexibility one exludes the possibility of dealing with what was at the time of the creation of the regulation unforeseen.

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