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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 presents unique rally
2005-06-07

On Friday 10 June 2005, the University of the Free State (UFS) will present the Kovsie version of the Amazing Race in Bloemfontein.

The Amazing Rainbow Rally will be held in aid of children and babies with serious diseases in the Department of Pediatrics and Child Health in the Faculty of Health Sciences.

By raising the necessary funds, equipment can be acquired to meet the unique health care needs of these special patients.  It will also enable the UFS to maintain the high standards of education, training and research in this field.

 The Amazing Rainbow Rally will give some residents of Bloemfontein an opportunity to test their knowledge of the city, as well as their time management skills, communication skills, team work and even their relationships! 

About 12 corporate teams from among others Vodacom, Eskom, Medi-Clinic, Mimosa Mall and Nedbank and four university teams must follow a specific route with various checkpoints by car.  Here they will have to complete activities or solve clues before receiving their clue to the next checkpoint.  Teams will be traveling with cars branded with the logo of the company they represent.

The rally will start at 09:00 at the Rooiplein of the UFS and will again end on the campus where they will complete the last task.  The first team to complete this task is the winner of Bloemfontein’s first Amazing Rainbow Rally.

OFM’s breakfast team will do live crossings on the day to reveal how teams are doing.

The Department of Pediatrics and Child Health at the UFS serves children with special needs, in other words children who need intensive care, or who suffer from cancer, heart disease, neurological diseases and conditions, endocrinological diseases or gastro-enterological conditions.

The Department provides secondary health care to more than 250 000 children in the southern parts of the Free State, but is responsible for the tertiary care of about a million children in the Free State and Northern Cape, as well as some parts of the North-West province, the Eastern Cape and Lesotho.  The intensive care units at Universitas and Pelonomi Hospitals serve approximately 1 300 neonatal and 350 intensive care patients annually.  The pediatric cardiology unit admits almost 300 high care heart patients per year.  Approximately 13 000 out-patients visit these two hospitals every year.

MEDIA RELEASE

Issued by:  Lacea Loader
   Media Representative
   Tel:  (051) 401-2584
   Cell:  083 645 2454
   E-mail:  loaderl.stg@mail.uovs.ac.za

7 June 2005
 

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