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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

Cochlear implant changes Magteld's world
2009-11-06

The microphone is ready for Magteld Smith’s (second from the left) first radio interview after the cochlear implant was switched on by Mr Henk Wolmarans (right) of MedEl. With them are, from the left: Ms Vicki Fourie, Deaf Miss SA, Ms Eunika Smith from the SABC and Prof. Jonathan Jansen.
Photo: Leatitia Pienaar


Magteld Smith gave her first steps towards the world of the hearing when her cochlear implant was switched on in the Universitas Hospital this week.

A whole team was there to share her joy and disbelief and amazement the moment she could hear noises, voices and conversations. Among them were the Rector and Vice-Chancellor of the University of the Free State (UFS), Prof. Jonathan Jansen, and the acting dean of the Faculty of Heath Sciences at the UFS, Prof. Gert van Zyl.

“I can hear my own voice! I haven’t heard it for a long time. My wish is that every deaf child can get something like this,” she said while prodding Prof. Jansen to speak so that she can hear his voice.

Magteld is working at the university's Centre for Health Systems Research and Development and was deaf since birth. She lost her last bit of hearing due to meningitis last year. Her hearing aids could then not assist her to communicate and a cochlear implant was the only option.

A donation by the Austrian company MedEl made the implant possible. Prof. André Claassen, Head of the Department of Otorhinolaryngology at the UFS, says MedEl was also instrumental in the establishment of the implant programme at the Universitas Hospital and sponsored the first five implants at a total cost of R1 million.

Prof. Claassen says 27 implants have already been done here, but it came to an abrupt halt due to a lack of funds. Strong hearing aids are expensive and cochlear implants are even more expensive at R200 000 each. People with hearing disabilities must be identified at an early age as the brain’s ability to learn sound and voice diminishes after the age of three.
 

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