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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

Perseverance is key for 2017 Abe Bailey recipient
2017-08-23

 Description: Gosego Moroka Tags: Abe Bailey Travel Bursary, Gosego Moroka, 2017 Abe Bailey, Goodenough College 

Gosego Moroka, recipient of the 2017 Abe Bailey Travel Bursary,
says his never-say-die attitude is what helped him win the bursary
the second time round.
Photo: Rulanzen Martin


A valuable life lesson can be learned from Gosego Moroka. The fourth-year LLB student was in the top three for the 2016 Abe Bailey Travel Bursary which was awarded to Candice Thickeson. And now in 2017 Moroka is the recipient.

“It means the world to me as it shows that perseverance is the key. I took last year’s loss as a lesson which I would use to improve as a candidate this year and I’m ecstatic that it came full circle.”

Bursary aims to broaden views

The educational tour will start on 21 November 2017. “We will be travelling to the African Union in Addis Ababa, Ethiopia, and then to London, Oxford and Cambridge universities in England, as well as Edinburgh University in Scotland,” Moroka says. The tour group will be hosted by Goodenough College in England. The bursary aims to broaden the views of young South Africans by providing outstanding students the opportunity to engage with students from other universities. 

Comprehensive application process
The application process starts with a motivation letter by the applicants stating the reason for applying. They must then submit letters detailing their leadership roles in the community, school, and at university. This is followed by an interview process. “The university will recommend three persons as possible bursars,” Moroka says. The Abe Bailey Trust will then, with the recommendation of the university, make its own decision in selecting the successful candidate. 

Great achievement adds to repertoire 
“This achievement was extremely important to me as it is testament that greatness is something one works towards.” Moroka is a former 100m South African champion and is part of the Golden Key International Honour Society. And now he is an Abe Bailey Bursar.  

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