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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 electoral body for student elections
2004-07-24

The University of the Free State (UFS) has appointed the Electoral Institute of Southern Africa (EISA) to handle the upcoming election of the Student Representative Council (SRC) and Student Parliament on the main campus.

"EISA specialises in elections and have done vast research on the subject"said Dr Natie Luyt, acting Dean: Student Affairs at the UFS.

Dr Luyt said that the UFS wanted an electoral body that can act as neutral and objective as possible. "EISA is a credible electoral body with the necessary knowledge and expertise. We have full confidence that they will ensure a free and fair election on campus"said Dr Luyt.

"EISA is a neutral party and our main aim is to promote democracy through the process of elections"said Mr Seth Phamuli, Chief Electoral Officer of EISA's UFS election campaign.

Mr Phamuli said that EISA has handled the SRC and Council elections of several other tertiary institutions in the country. These include among others the University of the Witwatersrand , the University of the North, Unitra, Wits Technicon, Vista and Pretoria Technicon. "EISA also acts as the secretariat for the Southern African Developing Countries (SADC) as far as elections are concerned and manages the election processes of various parastatal bodies in the country"said Mr Phamuli.

No changes to the constitution of the SRC have been made for this year's election. "The UFS Council decided last year that any changes to the constitution of the SRC should be submitted for consideration by the Council meeting which took place in June. However, the amendments were submitted late - after the closing date for agenda items to be added"said Dr Luyt.

The elections on the main campus will take place on 11 August 2004 .


MEDIA RELEASE
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za 25 Julie 2004

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