While the concept of unconscionability serves as a protection against unjust terms in a contract, a piercing of the corporate veil acts as protective measure against the misuse of the juristic personality. Both doctrines, therefore, empower the courts to police particular unjust behaviour in the corporate environment. The question is whether there is any real interworking between the two concepts, and if so, how such relationship should be applied by the courts in general, and more particularly in matters dealing with trusts. The article explores the interface between these two common-law doctrines as well as recent attempts by the legislature to codify some elements thereof. It is submitted that while both concepts rely on objective standards of fairness, justice and reasonableness, it is necessary for the judiciary to develop the interworking between the two concepts, with particular emphasis on a balance between the interests of individual participants in the business environment with that of commercial and contractual certainty. Particular emphasis is placed on public policy as a deserving evaluative benchmark for contractual relationships, which will include the principles of fairness, equity, justice, good faith and reasonableness.

The principle of public policy and factors such as fairness, reasonableness and good faith have – since the introduction of constitutionalism in South African law – become the cornerstone of the law and of its impact on all relationships – even therelationships in contracts. One such development is the assimilation of the doctrine of unconscionability in contract law. In this article, this concept, within the context of a trust formed by way of contract, is investigated. While the doctrine ofunconscionability is not without controversy, the question arises as to whether it has any role to play in trust law. The two-pronged approach traditionally used to determine the presence of an unconscionable contract or term is evaluated in light of its potential application in the case of trust deeds. The author submits that the incorporation of the doctrine will be advantageous in the developmental process in respect of a new constitutional trust-law order that is in harmony with the spirit,purport and objects of the Constitution. The doctrine of unconscionability has become a reality in South African law of contract; it should therefore also be embraced in the establishment of the trust as a dynamic tool in the commercial environment.

The nature and content of the fiduciary duty in South African trust law is discussed and the principles and theory of fiduciary law are set against the value system underpinning such law. The aspect of trust and the role of power within the fiduciary relationship, with particular reference to the duty of care as inherent ingredient of the fiduciary function, are investigated. While the fiduciary duty cannot be separated from the duties of a trustee, it is submitted that it is made up of more than a duty of care, and also includes aspects such as impartiality, independence, accountability, loyalty and good faith. The legislated duties of the company director, namely care, diligence and skill, are compared with the contents of the fiduciary duties of trustees, with reference to traditional viewpoints in other jurisdictions, such as the profit and conflict rule, the duty of loyalty and the law of equity. Against this background the question is posed whether the fiduciary duty of the trustee in South Africa is an expression of positive law only, or whether some normative content has actually infiltrated the application thereof. It is submitted that, as matters of a fiduciary nature are closely interwoven with moral and social aspects, the application of positive law when dealing with the fiduciary duty of trustees has indeed been influenced by some normative thinking.

The recent judgment in Hanekom v Voigt 2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust. It is evaluated from both a testamentary disposition and a trust law perspective, with the aim of determining whether the Hanekom matter has touched a particular nerve in the will versus trust debate as far as the trust mortis causa is concerned. From this judgment, the importance of differentiating between the spheres of testamentary law and trust law, to ensure legal certainty, became clear. The court submitted that the mere fact that a trust happens to be of testamentary origin should not influence the evaluation of the validity of the amendment of the trust instrument. The court underlined the dynamic nature of the trust figure in referring to it as a "supple, living institution." The nature of the powers vested in the Master of the High Court, both as far as the appraisal of the trust instrument and the appointment of trustees are concerned, is also considered in the judgement. In evaluating the facts of the case, the court recognised the applicability of the Oudekraal principle as it has been developed in the field of administrative law. The writer comes to the conclusion that, while the Hanekom case does illustrate some legal challenges in the last will and testament environment, it also offers a number of valuable lessons for will-drafters. The approach by the court is encouraging, as it shows some sensitivity for the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will per se is to be welcomed, and is a true and realistic reflection of the nature of the institution. KeywordsAmendment of trust deed; appointment of trustees; freedom of testation; Oudekraal principle; succession; testamentary trust; trust mortis causa …………………………………………………….

In the development of South African trust law, the courts have often attempted to identify a basis in Roman-Dutch law for the trust figure, with the inter vivos trust being seen as a contract akin to a stipulatio alteri. The ownership of trust assets, and in particular the legal position of the trust beneficiary, has proved to be closely interwoven with the legal nature of the trust figure.It is submitted that the emphasis on the contractual aspect of the living trust has in the past overshadowed its sui generis nature. In this article, both the acceptance requirement placed on beneficiaries of ownership trusts as manifested in Potgieter v Potgieter NO 2012 (1) SA 637 (SCA), and the trust-relationship theory proposed by JP Coetzee, are discussed. The lack of real rights vesting in the discretionary beneficiary is evaluated, from both a contractual and a sui generis perspective, with the writer proposing the application of the Roman-Dutch principle of ius expectati dominii as a mechanism for developing beneficiary rights. It is submitted that the recognition of a right of  expectant ownership will not only address the anomalous position of beneficiaries in ownership trusts but also impact the behaviour of trustees, inhibit alter ego trusts and contribute towards the maturation of the trust figure. In a contractual context, the existence of an enforceable right will allow the courts to apply applicable public policy principles to the evaluation of trustee decisions.