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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.

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"We cannot train for unemployment"
2009-11-16

The prestige forum was attended by, from the left: Prof. Dirk van Damme, Head of the Centre for Education research and innovation at OECD in Paris, France; Dr Saretha Brüssow of the Planning Unit: Teaching and Learning; Mr Francois Marais, Director of CHESD; Prof. Jonathan Jansen, Rector and Vice-Chancellor; Prof. Driekie Hay, Vice-Rector Academic Planning and the guest speaker; and Prof. Magda Fourie of the University of Stellenbosch.
Photo: Gerhard Louw
“We cannot train for unemployment. We must continuously look at what employers and the world want, and update,” Prof. Magda Fourie, Vice-Rector: Teaching and Learning at the University of Stellenbosch, recently said at a prestige forum for teaching and learning at the University of the Free State (UFS).

Prof. Fourie, former Vice-Rector: Academic Planning at the UFS delivered the second Magda Fourie Prestige Lecture at the forum. The forum was presented by the Centre for Higher Education Studies and Learning (CHESD) and the Planning Unit: Teaching and Learning. Various presentations were made on innovations in teaching and learning at the UFS.

Prof. Fourie said research has shown that the knowledge, skills, competencies and values of students are out of sync with the needs of the world out there. Higher Education must look at the context in which it operates and the relevance of its teaching and learning. “We are busy with the cultivation of humanity,” she said.

The UFS is doing excellent work with its bridging programmes and other universities will have to give attention to it. The UFS is also excellent in its extended programmes and have more women and foreign students than the national average. The UFS, however, has a lower percentage of black students than the national average.

The UFS is also excellent in terms of postgraduate students. The national average is 36%, with the UFS boasting 47%. Prof. Fourie expressed her concern for the low throughput in Business and Economics at the UFS where only 13% of those who enter the system graduate. “These are the people we need for this country’s economy.”

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