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A responsible party will also have to contain the breach, aim to recover any
compromised data (if possible), assess the risks associated with the breach,
including the potential harm for data subjects and conduct an investigation
into the cause of the breach and the effectiveness of the response thereto.
Responsible parties will therefore carry an extensive burden in terms of POPI in
respect of their network and data security and it would be advisable to enlist
the help of a technical expert or POPI specialist to review your current data
security systems and develop the necessary security plans and procedures for
your business. Commercial

What to do when the trustee claims he is not
authorised

Mulalo Muthelo
March 2018

“My beach house is for sale. A few weeks ago, I received an offer from a trustee
on behalf of a property investment trust. I accepted the offer and the deed
of sale was sent to the transferring attorneys. They have now called me and
indicated that the investment trust claims that the trustee was not authorised
to make the offer and that the trust is accordingly not bound thereto. Can the
trustee and trust just evade responsibility like this?”

The authority of a trustee to act on behalf of a trust is confirmed by the letters of
authority issued to a trustee by the Master of the High Court. The power of the
trustee to act is derived generally from the Trust Property Control Act 57 of 1988
and specifically from the trust deed of the trust, which has been registered with
the Master.
A trust deed will usually set out the identity of the trustees as well as their powers,
duties and functions, including specifying what may and may not be done by
the trustee(s). In addition, it would be expected that the trust deed also set out
the formalities to be complied with by trustees when they act on behalf of the
trust. An overarching responsibility of the trustees is to act only within the scope
of the general or specific objectives of the trust.

When it comes to a commercial transaction such as the purchase of property
as in your case, it must firstly be determined, whether the trust deed allows such
transactions. If it does, then it must be determined what the formalities are for
the taking of decisions in respect of such transactions and whether decisions
taken have met the required formalities in order to be valid.

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