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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

Self-help building project helps to change lives
2017-12-15


 Description: Eco house read more Tags: Anita Venter, Start Living Green’, Earthship Biotecture Academy, construction skills 

Anita Venter, lecturer in the Centre for Development Support, with the residents of
the eco friendly house. Photo: Supplied

UFS PhD student Anita Venter did not know it in the beginning, but her doctoral research would eventually change her life and the lives of many others. 

The research was whether South Africa’s housing policies were socially and culturally responsive to grassroots reality in informal settlements. Venter agreed her research approach might have raised a few eye brows, but it was a journey she holds had more benefits than failures. 

Green living
For her case studies, Venter looked at ‘Start Living Green’ as a concept and further examined the implementation models of Earthship Biotecture Academy in New Mexico and Central America and the Long Way Home non-profit organisation in Guatemala. 

These groups train people with no specialised construction skills in applying and managing environmentally sound self-help building projects. Furthermore, their primary objectives were not building-related, but people-centred, with an advocacy role to create social, environmental and educational change through utilising the building technologies. 

It resulted in Venter signing up for a course in Guatemala to get the skills to implement her case studies here at home in Bloemfontein. 

An experimental mud, straw and waste material structure in her back yard grew into similar houses built in informal settlements, through the transfer of knowledge of indigenous building methods.  

Are rickety corrugated iron shacks only alternative?

Her case studies, one in Freedom Square in the Mangaung Metro Municipality, highlighted, among others, baffling tenure insecurities and “tangible conflicts” entrenched between Westernised and African perspectives on home ownership.

Venter says her thesis, in essence, did not oppose existing housing strategies but did challenge the applicability of an economically inclined model as the most appropriate housing option for millions of households living in informal settlements. 

The main findings of the case studies were that self-help building technologies and skills transfer could make a significant contribution to addressing housing shortages in the country; in particular in geographical locations such as the Free State province and other rural areas.

Venter’s own words after her academic endeavour are insightful: “These grassroots individuals’ courage to engage with me in unknown territories, gave me hope in humanity and inherent strength to keep on pursuing our vision of transforming informal settlements into evolving indigenous neighbourhoods of choice instead of only being living spaces of last resort.”

Positive results 
The study has had many positive results. The City of Cape Town is now looking at new innovative building technologies as a result. Most importantly Venter's study will open further discussions that necessarily challenge the status quo views in housing development. 

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