In Du Plessis v Strauss, the question was can it be implied or tacitly assumed that children are fideicommisaries, thou not expressly named as such?

The court answered this question positively, by saying by law if a fiduciary dies having children it can be implied that those children of the fiduciary are fideicommisaries though not directly named as such.

To take it further the tacit implication of children as fideicommissaries, can be made even if children of a fiduciary are not mentioned at all in the fidicommissum if the fiduciary is the descendant of the testator and a fideicommissary is not a descendant of the testator. The practical example is, “ I give my farm to my daughter X. upon X death the farm goes to my friend Y.

in this example if X dies without children Y is a fideicommissary and gets the farm. However if X dies having children the children of X as his descendants are fideicommissaries and takes the farm even though the provision in a fideicommissum said nothing about the children. Therefore Y does not become a fideicommissary and does not get the farm. Children of X in this example are fedeicommissaries by implication of the law.

Are there any limitations either at common law or in terms of legislation regarding the number of fideicommissaries appointed in succession?

@ common law the limit is four stages or categories, which means if the will provide for the fifth one the fifth one is invalid and the fourth one will get the property free from the fideicommissum.

However, in respect of immovable property e.g. farm, house, land or any immovable thing the common law position has been changed by section 6 of the immovable property Act of 1965

Self study

1.Please read this section…. We shall discuss the difference between the common law position and S6

2. Duties of the fiduciary… this you can expect as a test or exam question (4)

The rights are vested once the asset has been transferred to the fiduciary. In respect of movable property it is transferred upon delivery, while the immovable one is transferred upon registration.

The fiduciary’s right to the asset is limited to the enjoyment and use. Even that enjoyment and use is limited by the fact that he must use the property in such a way that he maintains its essential qualities at the time it is transferred to a fideicommissary.

The fiduciary by general has no right to alienate the fideicommissum asset ( to dispose off, destroy or sell the asset) since it must still pass to the fideicommissary.

There are 3 common law exceptions to the general thus justifying the alienation of fideicommissum asset:

1.If the fideicommissaries are majors and agree to allienation;

2.If the court approves the selling or exchange

3.If the court has authorized alienation since there was a compelling necessity r such alienation (debts of the testator have to be paid and etc)

What is the legal nature of a fideicommissary’s rights before the fulfilment of a fideicommissary condition?

•The fideicommissary has no right but just hope and the expectation. The right will arise once the condition has been fulfilled

•The fideicommissary does have a right, but it’s a personal right, not a real right

•In respect of immovable property since the fideicommissum is normally registered against the title deed, the registration of fideicommissum creates a real   right for a fideicommissary.

NB! There are 2 different views regarding the nature of the personal right vested on the fideicommissary. Does it vest immediately subject to resolutive condition or is t suspended and only vest once the suspensive condition is fulfilled?

1st view says it vest immediately upon creation of the fideicommissum, subject to resolutive condition meaning it terminates if the resolutive condition is not fulfilled. example:- the right vest on Y immediately and it terminates if the resolutive condition is not fulfilled. (e.g. Y dies before fiduciary X)

2nd view says the right is suspended, meaning there is no vested right until the suspensive condition is fulfilled.  Example Y has no vested right upon creation of fideicommissum; his right is suspended and only arise if the suspensive condition is fulfilled ( e.g. the death of X )

There has been no decisive court decision to give direction regarding which of the above views is a correct one.

What are the factors that may lead to termination of a fideicommissum?

•If the fideicommissary condition has been fulfilled;

•If the duration or time limit placed against the fideicommisum in the will has expired;

•If one of the requirements for a valid fideicommissum have not been complied with (e.g. no fideicommissary appointment);

•If the condition for the fideicommissum is unlawful, impossible, against public policy or vague and therefore invalid;

•If the assets of the fideicommissum have been destroyed without fault on the part of the fiduciary;

•If all parties provided they are majors agree to the termination  of a fideicommissum; and;

•As a result of the application of the immovable property Act of 1965 (e.g. where more than 3 categories of fideicommissary have been created, in terms of section 6 it is limited to 2 therefore a third one will not get the asset)

 

USUFRUCT, TRUST AND FOUNDATION

…. We are still continuing on the legal institutions that can be created by the testator in his will providing for the distribution of his assets at the time of his death.

•What is a Usufruct? it is a “ personal servitude giving the usufractuary a limited real right to use another persons property and to take its fruits with the obligation to return the property to the owner, having maintained its substantial or basic quality”

Who are the parties in the usufruct?

v the testator

vUsufractuary / intermediate beneficiary ( the party who is given a right to use, enjoy and make fruits of the property, provided he maintains the basic quality thereof) and

The nude owner also known as the ultimate owner of the usufruct property.

What is the legal nature of the usufruct?

The testator gives the right of use, enjoyment and fruits of the usufruct asset to the usufractuary to the specific duration (usually life long) without passing ownership to that usufractuary. Then after the period of the usufruct has lapsed the asset passes to the ultimate beneficiary (nude owner).

During the period of usufruct the ultimate beneficiary cannot use, enjoy or take the fruits of the asset. At that stage he is known as the nude owner. Once the period of usufruct expires the ownership right of a nude owner is activated in full. Then the ultimate beneficiary may use the asset and even dispose it.

It can be created for movable, immovable and even incorporeal things.

Rights of the usufructuary in relation to the usufruct asset

üHe only has the right to use, enjoy and take the fruits of the property

üHe never has a vested right of becoming an owner of such an asset if the usufruct fails, unlike in a fideicommissum , if it fails the fiduciary becomes the permanent owner of the asset.

The difference between the fideicommissum and a usufruct.

In Estate Watkins Pichford v CIR the court made the ff broad distinction:

The main difference with regard to the rights of parties is that the fiduciary in a fideicommissum has a vested right in the fideicommissum asset; if the fideicommissum fails the fiduciary becomes the permanent owner of the asset. On the other hand the usufractuary in a usufruct has no vested right in the asset and may never become the permanent owner of that asset.

Usus and habitatio

Usus means use and habitatio means dweelling.

Usus is a form of personal servitude in terms of which the testator may give a beneficiary only the right to use the property for a specific purpose with limitations.

Habitatio is another personal servitude in terms of which the testator only gives the beneficiary the right to live or dwell on a property (immovable property)

Remember they are both like usufruct however they are lessor personal rights compared to usufruct. For instance usufruct can combine usus and habitation.