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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

Ford foundation funds higher education redesign
2005-06-23

 

The Ford Foundation has pledged a grant of almost R280 000 for redesigning higher education delivery at three campuses in the Free State.

According to Prof Magda Fourie, Vice-Rector: Academic Planning at the University of the Free State (UFS), the three campuses that will be affected by the strategic reconfiguration of higher education delivery are the Qwaqwa campus at Phuthaditjhaba and the Vista campus of the UFS in Bloemfontein and the Welkom campus of the Central University of Technology (CUT).

Prof Fourie says the three campuses were all affected by the restructuring of higher education, in line with the National Plan for Higher Education.

The Qwaqwa campus of the UFS that was part of the former University of the North was incorporated into the UFS in January 2003.  Likewise the Bloemfontein campus of the former Vista University was incorporated into the UFS in January 2004.

The Welkom campus of the CUT was also part of the former Vista University and was incorporated into the CUT in January 2004.

“These incorporations pose a challenge in that we have to think creatively about the best ways of using these three campuses to service the higher education, training, skills development and human resource needs of the Free State,” Prof Fourie said.

“The grant from the Ford Foundation will primarily be used to draw up strategic funding proposals for the three campuses.  The Qwaqwa campus of the UFS is a priority to us given the poverty and unemployment in a largely rural area of the Free State,” said Prof Fourie.

“A detailed consultation process will be undertaken in the Qwaqwa campus sub-region which will hopefully result in a comprehensive and a coherent suite of higher education activities being established on this campus,” said Prof Fourie.

“It is envisaged that the Qwaqwa campus will become a centre of excellence in the area of rural development.  This vision is based on a focused integration of the core functions of a university – teaching, research, and community service – around the issue of rural development,” said Prof Fourie.

Prof Fourie said that various educational offerings including among others short courses, bridging and foundation programmes, and degrees could be offered, with a particular focus on providing courses of relevance to students from the local rural community and students from elsewhere with an interest in focusing on rural development studies.

She said the redesign of the three affected campuses is being managed as a project of the Free State Higher Education Consortium (FSHEC) consisting of all the higher education institutions operating in the Free State.

“The aim of the project is to establish how the Qwaqwa and Vista campuses of the UFS and the Welkom campus of the CUT can be used effectively to meet regional education and training needs, to serve the strategic priorities of the two higher education institutions and contribute to the sustainable development and poverty alleviation of the region,” she said.

The planning for the Vista campus of the UFS is still in an early stage.  “We are looking at the possibility of developing this campus into a hub of education and training opportunities for Bloemfontein and Free State region.  Further plans will be communicated later in the year,” said Prof Fourie.

Media release

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

23 June 2005
 

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