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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

#Women’sMonth: Who am I? Questions of identity among Rwandan rape survivors
2017-08-03

 Description: Michelle Nöthling, Questions of identity among Rwandan rape survivors Tags: Michelle Nöthling, Questions of identity among Rwandan rape survivors 

Michelle Nöthling, master’s degree student
in the Centre for Trauma, Forgiveness, and
Reconciliation Studies at the UFS.
Photo: Eugene Seegers

From 7 April to 15 July 1994, a mass genocide swept through Rwanda after years of Belgian colonial rule that divided the country along ethnic lines. Rape was also used as part of a political strategy to torture and humiliate mainly Tutsi women, and as a means of spreading HIV.

Individual focus
Why is it important to listen to what these rape survivors have to say? Michelle Nöthling, a master’s student in the UFS Centre for Trauma, Forgiveness, and Reconciliation Studies, responds, “We speak of groups – refugees, foreigners, and the like – yet we tend to forget the individuals and the lasting impact trauma has had on each person.”

Narrative exploration
Michelle maintains that we are the product of the narratives around us; things like – how to be a woman, how to dress, speak, or treat others. Her research delves into how these rape survivors see themselves, how they narrate their lives. She also investigates power relations based on gender; for example, how language can be used as a divisive tool.

Rwandan backdrop
In Rwanda, gender roles are deeply entrenched. Traditionally, a ‘girl’ remains such while she is a virgin. Her transition into womanhood is usually marked by marriage and followed by motherhood. But rape disrupts this structure, leading to an identity crisis as these girls are catapulted into motherhood with an unplanned child resulting from a traumatic event.

“We are the product of
the narratives around us.”

Reaching their mid-teens, the children, too, started asking questions about identity or paternity. For those mothers who were finally able to open up to their children, the experience has been mostly liberating – often leading to a closer relationship between parent and child. Michelle intends to interrogate how such significant moments shape the way these women perceive themselves. Research tends to portray these survivors solely as mothers of rape-born children. Michelle, however, seeks to examine their identities more deeply.

“These survivors still bear the heavy burden of being marginalised, stigmatised, and severely humiliated. Despite this, they have developed their own communities of belonging; people with whom they connect, to whom they relate, and to whom they are not ashamed to tell their experiences,” she said.

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