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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

Migration is a developmental issue - experts
2010-06-01

Pictured from the left, front, are: D. Juma, Mr Williams and Prof. Hussein Solomon (University of Pretoria); back: Prof. Bekker, Prof. Lucius Botes (Dean: Faculty of the Humanities, UFS) and Dr Wa Kabwe-Segatti.
Photo: Stephen Collett


“Migration offers more opportunities for economic growth than constraints. It is an integral part of the processes of globalisation and regional integration.”

This was a view shared by one of the speakers, Dr Monica Juma from the Africa Institute of South Africa, during a panel discussion hosted by the Centre for Africa Studies (CAS) at the University of the Free State (UFS) last week as part of the celebrations of Africa Day on 25 May 2010.

The discussion was premised on the theme, Migration and Africa: From Analysis to Action.

Dr Juma said migrants could be assets for host countries or cities because of their resourcefulness. She said they brought along essential skills that could contribute immensely to the economic development of their host countries or cities.

“Governments are beginning to see migration as a tool for development and working together in developing immigration policies,” concurred another speaker, Mr Vincent Williams from the Institute for Democracy in South Africa (IDASA).

He said, if managed properly, migration could yield positive results. He said effective management of migration should start at local and provincial levels.
And for this to happen, he said, the current immigration laws should be amended as he felt they were no longer relevant, because they were based on what countries wanted to achieve in the past.

“Reform national immigration legislation to encourage permanent settlement and improve service delivery mechanisms and bureaucracy to match population movements,” Dr Aurelia Kazadi Wa Kabwe-Segatti, from the Forced Migration Studies Programme at the University of the Witwatersrand recommended.

However, Mr Williams pointed out that policy convergence was a difficult thing to achieve as migration was a politically sensitive issue. He said decisions that countries made on migration could have a negative or a positive bearing on their relations with one another.

Dr Juma also raised the issue of unskilled migrants which, she said, could be a burden to governments. This was reflected in the current South African situation where foreigners offered cheap labour and thus rendered South Africans who demanded higher salaries unemployable. This was a contributory factor to the xenophobic attacks of 2008. What was essentially a labour problem then manifested itself as a migration problem.

Prof. Simon Bekker from the University of Stellenbosch said South Africa was still losing a significant number of skilled professionals to Europe and North America due to an assumption that spatial mobility led to social or economic mobility.

He also suggested that the government should not restrict internal migration but should address the problem of migration across the borders into South Africa.

Senior Professor at the CAS, Prof. Kwandiwe Kondlo, said while the discussion covered a broad scope, there were some gaps that still needed to be filled in order for an all-inclusive view to prevail. One such gap, he said, was to also accord indigenous traditional institutions of governance space in such deliberations and not base discussions on this issue only on the Western way of thinking.

Africa Day is the day on which Africa observes the creation of the Organisation of African Unity (OAU) on 25 May 1963, to promote the unity and solidarity of African states and act as a collective voice for the African continent; to secure Africa’s long-term economic and political future; and to rid the continent of all remaining forms of colonialism. The OAU was formally replaced by the African Union in July 2002.

Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt@ufs.ac.za  
1 June 2010
 

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