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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

Record number of students to graduate at UFS
2017-06-19

Description: Day 2 Mid-year Graduation Bloemfontein Campus Tags: Day 2 Mid-year Graduation Bloemfontein Campus

Eleven graduation ceremonies will form part of the
mid-year graduation ceremonies at the
University of the Free State.
Photo: Charl Devenish

Livestream of Graduation Ceremonies

Six days, eleven ceremonies, and more than 5 000 degrees. This all forms part of what is the biggest set of graduation ceremonies in the history of the University of the Free State (UFS).

The mid-year graduation ceremonies, taking place from 19 to 26 June 2017 in the Callie Human Centre on the Bloemfontein Campus, will see the most students graduate during a week. A total of 5 258 degrees, which includes 460 master’s and doctoral degrees, will be conferred – including 72 doctoral degrees.

First graduation ceremonies for Prof Petersen
It will also be the first ceremonies that Prof Francis Petersen, new Rector and Vice-Chancellor, attends on the Bloemfontein Campus. Students from all seven faculties, as well as the South Campus, will graduate.

Graduates per faculty are (without master’s and doctoral degrees): Faculty of Education (488), Faculty of Health Sciences (345), Faculty of Theology (29), Faculty of Law (686), Faculty of Natural and Agricultural Sciences (1 029), Faculty of Economic and Management Sciences (1 044), Faculty of the Humanities (826), and the South Campus (354).

Guest speakers include three judges
Guest speakers for the ceremonies include Dipiloane Phutsisi, Principal and Chief Executive Officer of the Motheo TVET College in the Free State, Dr Susan Vosloo, UFS Council member and founder member of the World Society for Paediatric and Congenital Heart Surgery, and Prof Petersen.

Three judges will also act as speakers. They are Justice Ian van der Merwe, Judge of Appeal at the Supreme Court of Appeal and former Chair of the UFS Council, Justice Mahube Molemela, Judge President of the Free State Division of the High Court and Acting Justice of the Supreme Court of South Africa, and Justice Connie Mocumie, Judge of Appeal at the Supreme Court of Appeal.

Graduations ceremonies:

19 June 2017:
09:00: Faculty of Education, except educational qualifications in Open Distance Learning –  South Campus
14:30: Faculty of Health Sciences, Faculty of Theology and Faculty of Law (including the School of Financial Planning Law)

20 June 2017:
09:00: Faculty of Natural and Agricultural Sciences: All Bachelor’s degrees
14:30: Faculty of Natural and Agricultural Sciences: All Diplomas and Bachelor Honours degrees

21 June 2017:
09:00: Faculty of Economic and Management Sciences: All Certificates, Diplomas, Bachelor’s degrees and Bachelor Honours degrees, excluding BCom degrees
14:30: Faculty of the Humanities: Social Sciences and Communication Sciences only

22 June 2017:
09:00: Faculty of Economic and Management Sciences: BCom degrees only
14:30: Faculty of the Humanities: All qualifications except Social Sciences and Communication Sciences

23 June 2017:
14:30: Educational qualifications in Open Distance Learning – South Campus

26 June 2017:
09:00: All faculties except the Faculty of Natural and Agricultural Sciences: Master’s and Doctoral degrees
14:30: Faculty of Natural and Agricultural Sciences: Master’s and Doctoral degrees


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