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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

Education dialogue opens engagement on legacy of OR Tambo
2017-10-05

Description: Dialogue  Tags: OR Tambo, education, future, students, Africa, activism 

Pali Lehohla, outgoing Statistician-General speaking at the
Centennial celebration of Oliver Tambo.
Photo: Supplied


To celebrate Oliver Reginald Tambo’s centennial year, the Oliver and Adelaide Tambo Foundation, in partnership with the Rector and Vice-Chancellor of the University of the Free State (UFS), Prof Francis Petersen, and Absa Bank, hosted an interactive dialogue session, titled “Educating Africa’s Future” on 26 September 2017 on the Bloemfontein Campus.

Students encouraged to take charge of their future
The event opened up dialogue on some of the current burning issues that affect students in South Africa, societal challenges such as poverty and crime, and how leaders such as Tambo envisaged a free Africa. Prof Petersen highlighted the role that universities played in developing society, in creating leaders and crafting the path to transformation. Other speakers included Pali Lehohla, outgoing Statistician-General, Linda Vilakazi, CEO of the Oliver and Adelaide Tambo Foundation, Nombulelo Nxesi, CEO of Education, Training and Development Practices, Sector Education and Training Authority, Prof Peliwe Lolwana, Associate Professor at Wits University’s Centre for Researching Education and Labour, and Sikhululekile Luwaca, former UFS Student Representative Council (SRC) president.

Education may require a new approach
During the panel discussion that was facilitated by Phiwe Mathe, former UFS SRC President and media officer in the Office of the Chief Whip of the Free State Legislature. The audience raised concerns regarding the future of funding for university study, the securing of employment and possibilities, if any, of entrepreneurship. In response to some of the concerns, Pali Lehohla said the realities of family dynamics in South Africa affected the ability of students to be properly profiled and funded, according to family income, and that most importantly, the solutions to Africa’s challenges had to come from within and not without. Students’ questions gravitated towards the question of whether higher education in its current form was still valuable or whether new models of teaching that would foster inclusion and earlier economic independence would be of better value.

The legacy of OR Tambo continues to be honoured
The notion of education as a driver for the liberation of South Africa and the continent as a whole, poverty alleviation and freedom from colonial rule are some of the building blocks of the legacy of Oliver Tambo. 
Linda Vilakazi reiterated that students and student leaders would benefit from seeing the importance of using a broad-based African approach to the issues that plague them and their peers, rather than seeing their challenges outside of the continental context.  Sikhululekile Luwaca said higher education must be more accessible, and in order to drive change, students should use their education to become future employers rather than employees and change the face of the future themselves as was envisioned by other liberation leaders.
Caption: Pali Lehohla, outgoing Statistician-General speaking at the Centennial celebration of Oliver Tambo.

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