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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

New developments in the Faculty of Theology and Religion
2017-08-30

Description: Theology read more Tags: Faculty of Theology and Religion, name change, Prof Fanie Snyman, restructuring, teaching and research 

Bishop JM Khumalo, Apostolic Church of
Christ; Prof Fanie Snyman, Dean of the
Faculty of Theology and Religion; and
Rev Simon Galada, Wesleyan Church,
at the faculty’s official opening in
February 2017. 
Photo: Eugene Seegers



At a meeting of the UFS Council last year, a name change was accepted for the Faculty of Theology, renaming it to the Faculty of Theology and Religion. This change signals openness in approach to other religions, in addition to those of Christian denominations. This is a development that took root in Europe a few years ago. Furthermore, a growing field of interest is the study of the impact religion has had and still has, even in highly secularised societies. This name change is the first of its kind in South Africa, which means that the faculty will lead the way in transformation and impact-based religious studies.

Exciting times lie ahead
Prof Fanie Snyman, Dean of the faculty, says of these refinements: “The new name and restructuring of departments will lead to a new synergy that will have an impact on our teaching and research in the faculty. Exciting times lie ahead for the Faculty of Theology and Religion!”

Apart from the change in the name of the faculty, departments within the faculty were also regrouped, with new names. The Departments of Old Testament and New Testament merged to become the Department of Old and New Testament Studies, while the Departments of Systematic Theology and Ecclesiology merged and will now be known as the Department of Historical and Constructive Theology. The former Departments of Practical Theology and Missiology became the Department of Practical and Missional Theology. The Department of Religion Studies remained unchanged to emphasise the importance of religion in South Africa and the world at large.
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Distinction of theological disciplines
The rationale for these groupings is the distinction of theological disciplines in terms of the study of texts (Old and New Testament), sources (Systematic Theology and Church History), and practices (Practical Theology and Missiology). One benefit of these newly-constructed departments is that they will be more cost-effective, but the more important advantage is that this will stimulate discussion and research across the various theological disciplines.


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