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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

Qwaqwa campus upgrade begins
2005-06-23

Academic facilities, including lecture halls and the library, on the Qwaqwa campus of the University of the Free State (UFS) will be upgraded to the tune of R1,4-million.

An extra R100 000,00 has also been made available for the upgrading of four staff houses on campus.

The tender for this project was awarded to a local business in the Qwaqwa region, Mguni Enterprises.  This phase is expected to be completed next month - July 2005.

This is the second phase of upgrading of the Qwaqwa campus, following the earlier upgrading of student residences to the tune of R6,2-million.

“The total capital injection to improve the infrastructure on the campus is R7,7 -million.  The aim of the upgrading is to improve the infrastructure of the campus in order to provide an atmosphere conducive to learning, “said Prof Peter Mbati, Qwaqawa Campus Head. 

The first phase of the upgrading - amounting to R6,2 million - comprised of the upgrading of the five student residences and mainly dealt with the maintenance backlog.  Residences were painted, old furniture replaced, electricity  rewired and the necessary alterations made to ensure sufficient hot water supply as well as a new look to the face of the residences.

According to Prof Mbati the student visiting areas, reception areas and rooms were also improved by the changes in the first phase. The renovated residences now also boast facilities such as kitchenettes, washing machines and tumble driers and computers rooms.

There are currently 754 students staying in the residences.  Three residences accommodate female students and the other two are for male students. Students who are not accommodated on campus stay at the former Tshiya College of Education, approximately 5 kilometers from the campus. These students are bussed in to the campus on a daily basis.

“All these developments are a major step forward for the Qwaqwa campus as it once again shows our commitment to the campus to make it an attractive site of higher education in the Eastern Free State,” said Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS.

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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