How do I access my RAF money placed in an ABSA trust account when I was a child?

The long answer

An article from MacRobert Attorneys about protecting funds in third party compensation for personal injuries says that a trust deed must clearly state that any amendment must be approved by the High Court, and that if the trust funds are for a minor, this must be clearly stated.

So perhaps the first thing to do is to get a copy of the Trust Deed and see exactly what it says. The Trust Deed will set out all the terms and conditions of the Trust. Usually, RAF settlements involve a court order. If the court order that set up the trust said that the trust would end when you were a particular age, or when a particular condition had been met, you could apply to the High Court for the Trust to be terminated and for you to access the funds.  

In a 2022 case in the Gauteng High Court, Mathye v ABSA Trust Limited, the applicant Mahlatse Mathye asked the court to terminate the Trust as he was 23 years old, married with a daughter, and needed the money to start his own business. 

ABSA opposed this, saying that Mathye failed to say how ABSA was stopping him from what he wanted to do, and that he should have said what he would do to safeguard the funds if the court granted his application.

ABSA also asked the court not to decide the application until a curator ad litem had been appointed as the original court order of 6 December 2021 had laid down. (A curator ad litem is a legal professional who represents a minor, for example). ABSA said that the curator ad litem would need to give his report on whether the applicant was capable of managing his affairs, before the court considered Mathye’s application.

The Judge said that:

1. The original court order holds until it is set aside. In other words, the curator ad litem must be appointed as per the court order and, after interviewing Mathye to establish that he could manage his affairs, must report to the court.

2. But ABSA should have appointed this curator ad litem as soon as possible after Mathye turned 23, as per the court order.

The court said that Mathye’s application was dismissed, and that ABSA had to appoint the curator ad litem within 30 days to report to the court on whether Mathye was capable of managing his own affairs – i.e. the Trust funds.

This case shows the importance of knowing what the original court order said and following it so that the Trust can be terminated.

You would need a lawyer to make the court application. The matter would be set down for a court hearing, where your lawyer presents your case, and the judge will make a ruling. If the judge agrees that the Trust must be terminated, the trustee will be instructed to transfer the funds to you.

If you can’t afford a lawyer, Legal Aid, which is a means-tested organisation, can help you. These are their contact details:

• Email: [email protected]

• Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 

• Please Call Me: 079 835 7179   

Wishing you the best,
Athalie