The Taxation of Trusts in Sadc Member States
CORE Metadata, citation and similar papers at core.ac.uk Provided by Stellenbosch University SUNScholar Repository 2018 (2) StellLR 270 THE TAXATION OF TRUSTS IN SADC MEMBER STATES Izelle du Plessis BCom (Law) LLB LLM (Taxation) LLD (Stell) Senior Lecturer: Department of Mercantile Law, Stellenbosch University. 1 Introduction It is generally acknowledged that the trust1 originated in the English law.2 Yet, trusts are used (or at least recognised) in most jurisdictions worldwide.3 In fact, many Southern African Development Community (“SADC”) member states4 use trusts. Evidence of the use of trusts was found in Botswana, Lesotho, Malawi, Mauritius Namibia, Seychelles, Swaziland, Tanzania, Zambia and Zimbabwe. Perhaps this is not surprising, taking into account the influence of the English law on many of its former colonies.5 Despite a concerted effort, no indication could be found that trusts are used in Angola, the Democratic Republic of the Congo, Madagascar or Mozambique. Although it may be possible that relevant information was missed due to language barriers,6 a more likely explanation is that trusts are unknown in these states, because the law in these states is based primarily on civilian principles, or were significantly influenced by civilian principles. Consequently, this articleis limited to a 1 For purposes of this article, the rather broad and general definition of a trust, as found in article 2 of Hague Convention on the Law Applicable to Trusts and on their Recognition (adopted on 1 July 1985, entered into force 1 January 1992), will be used. This definition reads as follows: “For the purposes of this Convention, the term ‘trust’ refers to the legal relationships created – inter vivos or on death – by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.
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