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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

Academics should strive to work with students towards publishing, says NRF-rated researcher
2017-07-17

Description: Dr Rodwell Makombe Tags: National Research Foundation University of the Free State Qwaqwa Campus Department of English  

Dr Rodwell Makombe, Y-gegradeerde navorser.
Foto: Thabo Kessah


“The National Research Foundation (NRF) is a prestigious research institution and to be recognised by such an institution means that my work is worthwhile. This alone motivates me to do more research.” This is how Dr Rodwell Makombe reflected on his recent recognition as an NRF-rated researcher – one of the few on the Qwaqwa Campus. He is a Senior Lecturer in the Department of English at the University of the Free State’s Qwaqwa Campus.

“This recognition is indeed an important milestone in my research career. It means that my efforts as a researcher are recognised and appreciated. The financial research incentive will enable me to engage in more research, attend conferences, and so forth,” he said.

Comparing research in the Humanities and Sciences

Dr Makombe’s research area is broadly postcolonial African literature, but he is particularly interested in postcolonial literatures and resistance cultures. He is currently working on a book project entitled Visual Cultures of the Afromontane.

When asked what he thought about Natural Sciences being in the lead as far as research is concerned, he said that this is mainly caused by funding opportunities.

“It means that my efforts as a
researcher are recognised and
appreciated.”

“It is easier to access funding for research in the Natural Sciences than for the Humanities. Researchers in the Humanities usually do research without any form of funding. However, there are also differences in the way research is done in the Sciences than in the Humanities. Science researchers tend to work together on different projects, which make it easier for them to have their names on publications, no matter how small their contribution. This is also connected to the issue of funding,” he added. 

He continued: “Since research in the Humanities is largely unfunded, it is difficult for researchers to establish research groups. Another issue is that most academics in the Humanities do not necessarily teach modules within their research interests. Therefore, they tend to be overloaded with work as they have to do research in one area and teach in another area.”

NRF-rating and funding

For Dr Makombe, the solution to this challenge lies in academics in the Humanities working towards publishing with their students. “This way,” he said, “both the students and the academics will get publications that will help them to get NRF-rating and other forms of research funding. Modules in the Humanities need to be aligned to academics’ research interests to avoid mismatches between teaching and research.” 

He previously worked at the University of Fort Hare and the Durban University of Technology and has published several articles in both local and international journals.

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