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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

Historians must place African history on world stage – Dr Zeleza
2017-05-30

 Description: Historians must place African history on world stage Tags: Historians must place African history on world stage

From the left: Panellists Rev Henry Jackson,
Prof Irikidzayi Manase and Arno Van Niekerk at a book
launch and panel discussion on Africa Day hosted by the
UFS Sasol Library.
Photo: Mamosa Makaya

“African historians must take seriously the challenge of placing African history in world history, and in the history of our species, Homo sapiens.”

With these words, Dr Paul Tiyambe Zeleza, Vice Chancellor of the United States International University-Africa in Nairobi, Kenya, stressed the continent’s challenge.

According to him the contest should continue to recover and reconstruct Africa’s long history. Liberating African knowledges can be done by: “Provincialising Europe that has monopolised universality, universalising Africa beyond its Eurocentric provincialisation, and engaging histories of other continents on their own terms.”

University celebrates Africa Month in various ways  
Dr Zeleza delivered the ninth Africa Day Memorial Lecture, titled The Decolonisation of African Knowledges, at the University of the Free State (UFS). The lecture, hosted by the Centre for Africa Studies (CAS), took place on 24 May 2017 in the Equitas Auditorium on the Bloemfontein Campus and was one of the ways in which the UFS celebrated Africa Month.

Scholars should immerse themselves in these thoughts

Dr Zeleza focused on two issues, which he said were interconnected. They were the unfinished project of decolonising African knowledges and the continent's positioning in global knowledge production.

He said Africa’s scholars and students should “immerse themselves in the rich traditions of African social thought going back millennia”. According to him the continent’s research profile still remains weak in global terms.

“It is imperative that the various key stakeholders in African higher education from governments to the general public to parents, and to students, faculty, staff, and administrators in the academic institutions themselves, raise the value proposition of African higher education for 21st century African societies, economies, and polities.”

“Colonialism is associated with injustice
and inequality, but what happens when
our liberators become our oppressors?”

Library celebrates with panel discussion and book launch
The UFS Sasol Library celebrated Africa Day by presenting a book launch and panel discussion on 25 May 2017, on the pertinent and current political theme of land redistribution with a comparative basis of land invasions in Zimbabwe.

Prof Irikidzayi Manase discussed his book White Narratives: The Depiction of Post-2000 Land Invasions in Zimbabwe, accompanied by Rev Henry Jackson who wrote Another Farm in Africa. A perspective of the economic implications of land redistribution in South Africa was discussed by panellist Arno Van Niekerk: Senior Lecturer of Economics at the UFS Faculty of Economic and Management Sciences.

Inequality still an African problem
The content of the books are a stark reminder of the burning issues of inequality and loss of identity of those who lost their farms in Zimbabwe, a collection of memoirs by white farmers and their families. Rev Jackson gave a religious perspective on reconciliation, forgiveness and the question of land ownership, saying that healing of injustice begins with forgiveness of past transgressions.

Van Niekerk highlighted that while land issues were important, “social cohesion is affected by the economic decisions that will be made”. In closing, Prof Manase called for serious consideration of what the future may hold. “Colonialism is associated with injustice and inequality, but what happens when our liberators become our oppressors?” 

The panel discussion was attended by staff and students of the university, and was lit up by robust discussions on possible historical and future solutions to the question of land, decolonisation and political power struggles in Southern Africa and lessons to be learned from Zimbabwe.

UFS celebrates Africa Month (24 May 2017)

 

 

 

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