Constructive Trusts; Waqfs; and Breach of Trust Flashcards
What are constructive trusts?
- A constructive trust is a legal concept that arises in situations where someone holds property or assets under circumstances that make it unfair or unjust for them to retain ownership
- It is imposed by a court to remedy a situation where one party has been unjustly enriched at the expense of another.
When have courts recognised constructive trusts ito SA law?
To remedy unjust enrichment and other equitable concerns such fraudulent msirepresentation, breach of fiduciary duty, mistake
Which cases deal with constructive trusts?
- Minister of Internal Affairs v Albertson
- Gold v Rosenberg
What are the remedies available to parties seeking the enforcement of a constructive trust?
- An order from the court to transfer the property or assets to the rightful owner.
- Compensation or damages awarded to the aggrieved party for any unjust enrichment.
- Legal costs and fees associated with pursuing the constructive trust remedy.
What is a waqf?
An Islamic charitable endowment for rleigious, social or community purposes
Is a waqf in SA subject to the TPCA?
Depends on how the founding document of the waqf has been drafted. If it conforms with the definition of a trust in the TPCA, then it is subject to the Act and tot he control of the Master.
What is the process of establishing a waqf?
- Deed of endowment outlines purpose, beneficiaries and management
2.Mutawalli has wide powers to perform certain actions provided it is in accordance with the foudning document - Actions of mutawalli subject to the Kazis
- Aggrieved beneficiaries take cases to Islamic religious courts
- Mutawalli subject to the rule of Islamic courts but power to remove is by Mujtahid.
- Grounds of removala re dishonesty and failure to act in the interest of beneficiaries
How is a waqf terminated?
Waqf wound up and assets distributed by the Mutawallu with consent of a judge of an Islamic court.
