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29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett
Prof Bradley
Prof Bradley Smith tackles the ambiguities surrounding trust misuse during divorce proceedings.

In his inaugural lecture on 21 February 2024 at the University of the Free State (UFS), Prof Bradley Smith explored the complexities of trust misuse in the context of property disputes during divorce proceedings. Prof Smith is an Extraordinary Professor at the UFS Faculty of Law. Drawing on two decades of judicial evolution in the Supreme Court of Appeal (SCA), Prof Smith highlighted the inconsistencies in the SCA’s treatment of this issue that impedes attempts to curb “divorce planning” by way of a trust and proposed solutions to address them.

One of the core issues he identified is the abuse of trusts, where assets are placed within a family trust to diminish a spouse’s personal estate value while treating the trust property as personal property for personal gain. This is often done in an attempt to evade the financial consequences of divorce. Prof Smith explained that this practice undermines the essence of trust law and that the inconsistent approaches by our courts exacerbate the challenges in dividing property during divorce proceedings in a manner that respects the spouses’ matrimonial property regime.

Navigating challenges: reflections on research and its importance

Prof Smith’s proposal revolves around the development of a consolidated test for piercing the veneer of an abused trust, aiming to enhance legal certainty. He emphasised the necessity of a unified approach. “Utilising this test will ensure uniformity because of its applicability to all marriages out of community of property, irrespective of whether the accrual system is involved,” he said.

His meticulous examination of conflicting judgments was praised by Dr Brand Claassen, head of the Department of Private Law, who described it as “the work of a master craftsman”. Retired Judge of Appeal, Eric Leach, also highlighted its critical importance in clarifying complex legal issues for the public good.

“It is of critical importance and in the public interest for judicial decisions, particularly those of higher courts such as the Supreme Court of Appeal and Constitutional Court, to be subjected to careful and considered analysis and, if needs be, criticism. Prof Smith’s inaugural lecture on combating trust form abuse in the context of matrimonial property claims at divorce, in which he carefully considered and analysed the conflict between several Supreme Court of Appeal judgments, was a valuable and important study on the issue,” said Judge Leach. He added that he hoped Prof Smith’s research would be considered by the SCA in future.

Future directions: advancing discourse and sound legal theory

Looking ahead, Prof Smith envisions further research into the applicability of the consolidated test to marriages in community of property, aiming to address remaining uncertainties that lie at the intersection of matrimonial property and trust law. He emphasised the importance of countering the prevailing “catch-me-if-you-can” attitude in divorce matters, advocating for proactive measures to uphold fairness and justice in matrimonial property disputes.

In conclusion, Prof Smith’s inaugural lecture provided valuable insights into combating trust form abuse within the context of matrimonial property claims at divorce. His proposed solutions and ongoing research efforts signify a commitment to advancing discourse on trust law theory and practice, with the ultimate aim of a sound judicial approach that serves the needs of South African society.

News Archive

Reflection should stimulate action – Prof Petersen
2017-05-25

 Description: Panel discussion: Reflection should stimulate action  Tags: Panel discussion: Reflection should stimulate action

Panellists at a discussion held by the Institute for
Reconciliation and Social Justice were, from the left,
Prof Elelwani Ramugondo of the University of Cape Town,
Prof Melissa Steyn from Wits, Prof Francis Petersen,
Vice-Chancellor and Rector of the UFS, and SK Luwaca,
president of the Student Representative Council on the
Bloemfontein Campus.
Photo: Johan Roux

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The University of the Free State (UFS) should be a place of belonging, a place where staff, academics and students belong and can make a contribution to a democratic society.

This is according to Prof Francis Petersen, Vice-Chancellor and Rector of the UFS. He was one of four panellists at a discussion, titled Diversity, inclusivity and social justice and the renewed call for decolonisation, hosted by the Institute for Reconciliation and Social Justice (IRSJ). Prof Elelwani Ramugondo from the University of Cape Town, Prof Melissa Steyn from Wits, and SK Luwaca, president of the Student Representative Council on the Bloemfontein Campus, were the other panellists.

The IRSJ facilitated the discussion, which formed part of the inauguration proceedings for Prof Petersen as new Vice-Chancellor and Rector, in the Albert Wessels Auditorium on the Bloemfontein Campus on 18 May 2017.

Renewed thinking about decolonisation

Prof Steyn said: “We can develop our vocabulary to understand our real differences.” She noted that we are all part of reproducing, resisting and reframing the current order.

Universities should be a place where questions can be asked, Prof Ramugondo said. She elaborated on the term decolonisation, saying we needed to investigate how we related and reflected on it, mentioning the myths that surrounded the term. “We should renew our thinking [about decolonisation] at universities,” she said.

“We can develop our vocabulary
to understand our real differences.”

What does a transformed UFS look like?
According to Luwaca unity isn’t something that can be faked, but everybody should work towards it, building a rainbow nation together. It is important for everyone to be on the same page: “We have to ask ourselves what a transformed university looks like.”

Prof Petersen said it was important to often pause and reflect: “Reflection should stimulate action. Reflection is not something without action.”

After the discussion, a lively question-and-answer session with the panellists took place. Prof André Keet, director of the IRSJ and facilitator of the discussion, suggested the gathering should be the start of many similar engagements.

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