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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

A real indaba it was
2010-09-07

Pictured from the left, are: Prof. Dennis Francis (Dean), Prof. Rita Niemann (Director: Postgraduate Studies and Research) and Prof. Rob Pattman (Keynote speaker: UKZN).

No expert panels! No rubrics! Only a fair measure of healthy anxiety that goes with public speaking!

These features describe the meeting that staff members from the Faculty of Education recently had at Indaba Lodge on the banks of the Modder River. The purpose of this get-together was to create a time and space where staff members could not only celebrate their own research efforts, but also acknowledge, support and validate one another’s work.

The day kicked off with the dean’s research vision for the faculty. Thereafter seven staff members doing their Ph.D.s were introduced. Their presentations were followed by inputs from the guest speaker, Prof. Rob Pattman from the University of KwaZulu-Natal (UKZN). He congratulated the presenters on their cutting-edge research, their eloquence and the manner in which they managed to communicate complex matters in simple ways. Ideas he shared from his own research on social identities and critical agency (with a focus on gender and race) served to affirm the relevance of the topics presented by the Ph.D. candidates in transforming the education system as well as the South African society as a whole.

A festive lunch, in honour of retiring Prof. Johan van Staden, brought an affective dimension to the Indaba in the form of heart-felt goodbye messages from colleagues who had shared his academic life for more than 20 years.

After lunch five master’s students had the opportunity to share their research in the form of poster presentations. A lively interest among participants and critical, but constructive questions characterised this session. A potpourri session followed, comprising work in progress, completed surveys, research awards and innovative research methods.

The wrap-up by Prof. Dennis in no uncertain terms affirmed that researchers in the Faculty of Education not only crossed the Modder River, but also the proverbial Rubicon on 21 August. It was envisaged that henceforth:
- Supervision will take on a collaborative character.
- Soon a research forum for Ph.D. students and their supervisors will be established where these students and supervisors can start practising their agency.
- Instead of relying on outside experts who come and “tell” faculty staff members what to do, insiders should start building their own vibrant research-based practices by forming reading groups to discuss seminal works (e.g. Foucault and Freire) and research methodologies (e.g. Burke’s Pentad).

The Indaba was aptly concluded by one of the participants who, on behalf of all attendees, thanked and congratulated the dean on the initiative to give impetus to research. Analogous to the 2010 slogan, Feel it, it is here!, he said: “I feel so inspired and empowered, I can almost taste it!”
 

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