Latest News Archive

Please select Category, Year, and then Month to display items
Previous Archive
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

Founding meeting of the Advisory Panel of the International Institute of Diversity
2008-11-21

The University of the Free State (UFS) today (20 November 2008) successfully convened and hosted the founding meeting of the Advisory Panel of the International Institute of Diversity.

In the wake of the Reitz video incident, the UFS wishes to establish an institute that will study and promote transformation on the campus as a microcosm of the much broader socio-political challenges facing South Africa. It is hoped that in due course the UFS and the institution will develop the expertise and experience to help other organisations and societies in transition.

The institute will work closely with the Transformation Cluster – one of six strategic academic clusters already created as part of the university’s long-term strategic plans.

Given the transformation climate in which it finds itself, the university recognises that the guidance, support and direct involvement of thought leaders and other specialists in the field of transformation are critical to the design and operation of the proposed institute. To this end, the university has established an advisory panel for the institute. The Advisory Panel will give guidance to the Executive Director (to be appointed) in helping with the conceptualisation, design, and development of the institute, and the compilation of its business plan.

Brian Gibson Issue Management facilitated the meeting and is also responsible for the reporting on the meeting. The International Institute for Development and Ethics (IIDE) co-hosted and provided the secretarial support for the meeting.

 


The members of the advisory panel:  

(Click here to read more about the Panel Members)

External panel members:

Dr Clint Le Bruyns, Senior Lecturer in Public Theology and Ethics at the University of Stellenbosch .

Dr Sebiletso Mokone-Matabane, Chief Executive Officer, Sentech Limited.

Dr Andries Odendaal works in the field of conflict transformation with international agencies such as the United Nations, DANIDA and GTZ.

Prof. Lungisile Ntsebeza, National Research Foundation (NRF) Research Chair in Land Reform and Democracy in South Africa in the Department of Sociology, University of Cape Town.

Mr Roger Crawford, Executive Director for Government Affairs and Policy South Africa, Johnson & Johnson.

Prof. Jonathan Jansen, Dean of the Faculty of Education, University of Pretoria 2001 to 2007.

Ms Zandile Mbele, Director of Plessey (PTY) Ltd. and the Transformation Executive for Dimension Data.

Dr André Keet, Director: Transdisciplinary Programme at the University of Fort Hare in October 2008 and part-time Commissioner with the Commission for Gender Equality.


Dr Reitumetse Obakeng Mabokela is an associate professor in the Higher, Adult, and Lifelong Education Program in the Department of Educational Administration at Michigan State University.

Dr Mpilo Pearl Sithole is a senior research specialist in the Democracy and Governance Research Programme at the Human Science Research Council.

Professor Steven Friedman, D.Litt. is Director of the Centre for the Study of Democracy at Rhodes University and the University of Johannesburg.

Representatives from UFS:

Prof. Teuns Verschoor, Vice-Rector: Academic Operations at the University of the Free State, and currently Acting Rector and Vice-Chancellor.

Prof. Piet Erasmus, Interim Co-ordinator for the Cluster Transformation in Highly Diverse Societies.

Prof. Lucius Botes, Director of the Centre of Development Support and Programme Director of the Postgraduate Programme in Development Studies.

Prof. Philip Nel, Former Director of the Centre for Africa Studies at the UFS.
 

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept