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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

Springboks choose Kovsies' sports facilities
2010-09-02

The Springbok team boasts five former Kovsies. From the left, front, are: Flip van der Merwe, Prof. Jonathan Jansen, Rector and Vice-Chancellor of the UFS, and Gurthro Steenkamp. At the back, from the left, are: Jannie du Plessis, C.J. van der Linde and Juan Smith.
Photo: Gerhard Louw

Over the years the University of the Free State (UFS) has already produced 67 Springbok and 22 Springbok Sevens players. Therefore it comes as no surprise that the Springboks have chosen the UFS’s sports facilities in preparation for their match against Australia this coming Saturday. They will tackle Australia at the Free State Vodacom Park at 17:00. Five former Kovsies are included in this team. They are Flip van der Merwe, Gurthro Steenkamp, Jannie du Plessis, C.J. van der Linde and Juan Smith.

Kovsies have been providing quality rugby for many decades already. During the 2009 rugby season the UFS rugby club produced 12 players for national teams and 73 players for provincial teams (all age groups). This does not include all the former Kovsies. According to Mr Rockey le Roux from KovsieSport at the UFS, there is currently not one South African Super 14 team that does not include a Kovsie or former Kovsie.

The UFS is also equipped to produce top rugby players. Shimla Park is the main field of Shimla rugby, where all the Shimla games are played. Some of the Varsity Cup games are also played on this field. Boom Prinsloo, the Shimla player named as the 2010 player of the Varsity Cup tournament, is included in the current Springbok Sevens practice team. Shimla Park boasts 1 000-lux lights, which let this field comply with international standards.

There are four more rugby fields that are used for residence rugby. Currently 26 rugby teams of the university's residences and three provincial teams practise on the fields.

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