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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

UFS appoints Dr Khotso Mokhele as Chancellor
2010-06-04

Dr Khotso Mokhele as Chancellor, University of the Free State
  Dr Khotso Mokhele
The Council of the University of the Free State (UFS) appointed Dr Khotso Mokhele as Chancellor during its quarterly meeting held on the Main Campus in Bloemfontein today.

“It is an honour for the Council to appoint someone of this stature as Chancellor of the UFS. With his solid academic background and high profile in the business world, Dr Mokhele is a great asset to the UFS,” said Judge Ian van der Merwe, Chairperson of the UFS Council.

Dr Mokhele is a graduate of the University of Fort Hare and did his postgraduate studies at the University of California in the USA. He is also a graduate of the Graduate School of Business at Stanford University in the USA. Dr Mokhele has eight honorary doctorate degrees from South African tertiary institutions – among others the UFS – as well as an honorary doctorate degree from Rutgers University in the USA. He holds post doctoral fellowships from the Johns Hopkins University School of Medicine and the University of Pennsylvania’s School of Medicine, both in the USA.

Dr Mokhele was founder president and chief executive officer of the National Research Foundation (NRF), as well as founder president of the Academy of Science of South Africa (ASSAf).

He holds non-executive positions on the boards of several national companies, among others as the Chairman of Impala Platinum Holdings Ltd, non-executive chairman of Adcock Ingram Holdings Ltd and non-executive director of both African Oxygen Ltd and Tiger Brands Ltd.

He is currently Chairperson of the selection committee of the Rhodes Scholarships for Botswana, Malawi, Namibia, Lesotho and Swaziland, member of the Committee on Developing and Transition Economy Countries of the International Social Sciences Council (ISSC) and member of the Review Committee assessing VW Foundation research funding in Sub-Saharan Africa and the former Soviet Central Asian/Caucasus Republics.

Dr Mokhele received the Lifetime Achievement Technology Top 100 award in 2009 for his vision and major contribution in securing the Southern African Large Telescope (SALT), constructed outside Sutherland in the Northern Cape.

Dr Mokhele’s succeeds Dr Franklin Sonn, who retired as Chancellor of the UFS at the end of 2009.

Media Release
Issued by: Lacea Loader
Director: Strategic Communication (actg)
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl@ufs.ac.za  
4 June 2010

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