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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

UFS Faculty of Health Sciences opens student residence in Trompsburg
2017-07-06

Description: Trompsburg read more Tags: Trompsburg read more

Official unveiling of the memorial plaque by
Prof Gert van Zyl, Dean of the Faculty of Health Sciences,
and Prof Francis Petersen, Rector and Vice-Chancellor
of the University of the Free State.
Photo: Charl Devenish

The University of the Free State’s (UFS) Faculty of Health Sciences has, as part of its commitment to student and community development, established a student residence in the town of Trompsburg in the Kopanong Local Municipality. The faculty officially opened the Rural Community Initiative and student residence in June 2017. The newly developed student residence has 10 apartments which could each accommodate six individuals.  A housemaster resides on the premises and acts as manager of the facility.  All areas of the residence are Wi-Fi covered and it has a 24-hour security service.

Importance of the residence
The goal of the Kopanang le fodise – Unite to heal programme is to develop a community-centred collaborative framework for sustainable, holistic healthcare and social development which is incorporated in the curricula of the faculty. During 2016, a total of 324 fourth-year students have each spent at least a week in primary healthcare facilities on a Community Based Education and Inter-Professional Education platform in Trompsburg and Springfontein in the Kopanong Municipality.

“This programme was commissioned to fulfil a specific goal. We are connecting our students with the community. The support of everyone coming together caused this to move from being just a spark, to a blaze. This is all our project,” said Dr René Botha, coordinator for Community-based Education and Rural Health in the faculty.

Community outreach a priority
“This is an innovative project that has been able to bring health and health-related issues to the community. One of the UFS’ three focus areas is community engagement. This project is primarily focused on serving the community, but also on the academic element, which is student development,” said Prof Francis Petersen, Rector and Vice-Chancellor of the UFS.

Prof Petersen commended the project on being the first of its kind in the South African Health Sciences sector. The platform will also be used for research purposes that will enrich the sector. Prof Petersen challenged the Kopanong community to give their input by answering two questions: What is the UFS good at? What is the UFS good for?

Reaching for the stars
“I am a dreamer and I have to reach, and if I reach, I reach for the stars. Today we are very lucky, because we have grabbed that star,” said Prof Gert van Zyl, Dean of the UFS Faculty of Health Sciences.

Prof Van Zyl reminded the audience that they possess the power to change challenges into stars by approaching them with careful thought, planning, and motivation. Prof Van Zyl concluded by stating that the rural community initiative is for the community, and that the faculty is just the facilitators.

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