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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

Heinrich Brüssow named as Kovsie Alumnus of the Year
2010-08-19

Ms Jackie Ntshingila  Prof. Teuns Verschoor  Prof. Benito Khotseng  Heinrich Brüssow 

The Alumni of the University of the Free State (UFS) have named Heinrich Brüssow as the Kovsie Alumnus of the Year for 2009.

At the same time, Ms Jackie Ntshingila, the Provincial Manager of the Small Enterprise Development Agency (SEDA), will receive the Kovsie Alumni Cum Laude Award, while the Executive Management Award will be awarded to Prof. Teuns Verschoor, acting Senior Vice-Rector at the UFS, and Prof. Benito Khotseng. These awards, which are made annually to honour alumni of the UFS for their exceptional achievements and contributions to the university, will be awarded on Friday, 3 September 2010.

Heinrich is currently one of the most formidable Free State Cheetahs players. During the international Super 14 Competition he was a pillar of strength for his team in many respects. He was one of the outstanding players in the match between the Springboks and the Lions. He has established himself in the triumphant Springbok team as one of the definite choices. He received the Man-of-the-Match award in the Springboks’ victory over the All Blacks on 25 July 2009, as well as the awards as the Provincial Player of the Castle SA 2009 Tournament, the SA Rugby Young Player of the Year 2009 and the 2009 Sports24 Performer of the Month.

Ms Ntshingila will receive the Kovsie Alumni Cum Laude Award for her role in the business development sector in the Free State and particularly the empowerment of women in the business sector. Her constructive inputs on various committees have lead to the outstanding role that she has played to expand SEDA in the Free State from 1 to 56 members and five branches during a relatively short period.

Prof. Verschoor will receive an Executive Management Award for the tremendous role he has played in many student matters, research, transformation and other university matters. Recognition is also given to the role that he fulfilled as acting Rector of the university during 2008-2009. In this he has emphasised his passion and commitment towards the university. In 2004 he received a Centenary Medal for management, diversity and student transformation.

Prof. Khotseng will receive an Executive Management Award for his influential and leading role during the 1990s, when the UFS was established as an outstanding institution. Prof. Khotseng played a leading and influential role as Vice-Rector: Student Affairs. He has served on the UFS Council from 1993 and in 1994 he accepted the position as Senior Manager: Strategic Programmes at Kovsies. He managed transformation and the marketing of the university in the black community with distinction. In 1995 he helped to diffuse the conflict in residences and to create a culture of learning. With the help of the Multicultural and Transformation Committees he taught persons to respect and understand one another. In 2004 he also received a Centenary Medal. 

The coveted Kovsie Alumni Awards will be handed over at a Kovsie Alumni breakfast. All alumni are welcome at the breakfast which will take place in the Reitz Hall of the UFS Centenary Complex. The cost is R50 per person and includes a delicious breakfast. If you are interested in attending, please contact Annanda Calitz at 051 401 3382 or ficka@ufs.ac.za  
 
Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt@ufs.ac.za
19 August 2010

 

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