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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

Agriculture must adapt to change
2008-11-28

 

At the launch of "50 years of agriculture" at the UFS were, from the left: Mr Corwyn Botha: Chairman: Agri Business Chamber and Managing Director: Cape Agri Group, Mr Motsepe Matlala, President of NAFU, Mr Hans van der Merwe, Executive Head: Agri SA, Prof. Herman van Schalkwyk: Dean: Faculty of Natural and Agricultural Sciences at the UFS, and Mr Sugar Ramakarane, Head: Department of Agriculture, Free State Province.
Photo: Lacea Loader

 “The biggest factor driving agriculture today is change. Our major challenge is to adapt to this changing environment.” This was stated by Prof. Herman van Schalkwyk, Dean of the Faculty of Natural and Agricultural Sciences at the University of the Free State (UFS) during the recent celebration of the faculty’s “50 years in agriculture”.

Prof. Van Schalkwyk stated that the most important changes include power relationships in supply chains, consumer demand, new products and technology in agriculture, government action and developments in neighbouring states. “At the moment there is very little cooperation between small-scale farmers, small-scale farmers and commercial farmers and farmers and processors. There are also low levels of processing, low levels of value adding and a lack of creative thinking in agriculture," he said.

“This must change – we need comprehensive agricultural support and new business ideas in agriculture. We need better infrastructure, value chain financing and improved institutional support,” he said.

Speaking about agriculture and institutional co-operation in the Free State, Mr Sugar Ramakarane, Chief Director of the Free State Department of Agriculture, said that the UFS plays a vital role in bringing together organised agriculture in the province. “The responsibility of transforming our economy cannot be done by government alone. We need partners like the UFS to assist us with bringing together the two most important stakeholders of the agricultural sector, namely the National Farmers’ Union (NAFU) and Free State Agriculture. You can assist us with harnessing co-operation and providing practical solutions," he said

Mr Ramakarane said that his department is aware of the university’s good work with emerging farmers. “But, I want to encourage the university to help us with skills transfer and the development of the emerging farmers. You can play a vital role in developing a mentorship programme. Yours remains a central and critical role of being torch bearers in guiding the transformation agenda of our country," he said.

In his contribution on the challenges of small scale farmers in South Africa and the role of the university, Mr Motsepe Matlala, President of NAFU, said that unity in organised agriculture and working together with other stakeholders has become even more crucial with regard to the global challenges now faced by the country. “The university should take the lead in guiding all farmers on how to respond to, among others, the global financial turmoil and politics, developments in trade negotiations, food prices, input costs and the availability of energy," he said.

“If the UFS, and more specifically the Faculty of Natural and Agricultural Sciences, is to continue to play a leading role in academia as well as in the production of research that matters to the growth and development of this country, it must adopt an approach that seeks to harness the capacity of everyone in an inclusive manner. The strides already made in this regard must be applauded,” Mr Matlala said.

Speaking on the future challenges in agriculture and the role of universities, Mr Hans van der Merwe, Executive Head of Agri SA said that South Africa has not spent money on agricultural development in a long time. “We must increase our product capacity in the agricultural sector. Universities must focus on cultivating enough expertise and the skills necessary to manage the resources and capacity needed," he said. In his view, South Africa must also focus on technological advancement in agriculture as this has also been neglected in the past. He urged universities to provide best-practice education and to look at international trends in agricultural training. “That is why we should not only focus our attention on South Africa, but on southern Africa,” Mr van der Merwe said.

In conclusion to the day’s programme, Mr Corwyn Botha, Chairperson of the Agricultural Business Chamber, Managing Director of the Cape Agri Group and former Kovsie stated that: “If you want to be an example of leadership, people around you must do better because you are there. A university should evaluate itself in this context. You cannot create solutions to problems with the same attitude in which the problems were created."

Media Release
Issued by: Lacea Loader
Assistant Director: Media Liaison
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za  
28 November 2008
 

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