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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

Student Transformation Forum kicks off
2010-08-19

Ms Nida Jooste and Ms Modieyi Mothole
Photo: Lize du Plessis

The establishment of a Broad Student Transformation Forum (BSTF) at the University of the Free State (UFS) was initiated yesterday with a student consultative forum called to determine the agenda and delegations to the BSTF.

The establishment of the BSTF follows the suspension of the functioning of the Student Representative Council (SRC) recently and aims to provide students broadly with the opportunity to reach consensus regarding student governance at the Main Campus in Bloemfontein.

The meeting was chaired by student affairs specialist Prof. Cecil Bodibe and was attended by representatives from student associations from all faculties, representatives of non-faculty student associations and representatives from residences. Commuter students were represented through private student associations.

“The meeting clearly expressed agreement that decisions taken by the BSTF should ensure that the student body and student-life programmes truly reflect our constitutional commitment to building a non-racial, non-sexist and democratic society, and that collaboration between students and management in affecting the decisions of the BSTF to achieve this should be prioritised,” Mr Rudi Buys, Dean of Student Affairs, said.

The forum agreed that apart from addressing specific questions pertaining to student governance, the BSTF should also address transformation issues broadly. The forum also agreed that the delegations to the BSTF should ensure that the forum is truly representative of the diverse student population and is inclusive of all stakeholder groups, including international students and students with disability. A proper process to determine the credentials of participating association was requested and will be implemented.

The meeting furthermore expressed the wish that the BSTF should exist only to determine the key changes that should be made to student governance now, so that the postponed SRC elections may continue as soon as possible. The BSTF will thus have a temporary role to enable the student body to reach consensus regarding changes to the SRC constitution.

Meanwhile, an Interim Student Committee (ISC) was appointed, which has the role to ensure the continuation of daily student life programmes and to ensure student representation in management and governance of the university continues during the deliberations of the BSTF. The ISC serves as an interim structure that will dissolve when a new SRC takes office following the outcome of the BSTF and the continuation of the SRC election.

The ISC consists of 15 members who were appointed through a process of nomination of four (4) members each from the faculty-student associations, non-faculty student associations and from residences, and three (3) members from the student executive committees of Kovsie Community Service, the Irawa student newspaper and the Kovsie Rag executive committee.

The ISC elected Ms Modieyi Mothole and Ms Nida Jooste as its chairperson and deputy-chairperson, respectively.
“I’m encouraged with the initiative and response of students to ensure student governance continues, which bears witness to the depth of leadership our student body holds, while the level of engagement by students in the BSTF indicates that the student body seriously consider issues of transformation,” said Mr Buys.

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

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