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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

Samantha excels as Dux student
2011-10-26

 

Samantha Renda-Dollman with Dr Choice Makhetha, the sponsor of the DUX Award trophy and Vice-Rector: External Affairs. Sharing the moment with them is Prof. Willie van Zyl, Assistant Campus Principal: Academic.
Photo: Thabo Kessah

Samantha Renda-Dollman, a BSc (Zoology) student at our Qwaqwa Campus has obtained 19 distinctions out of the 22 modules she has written since 2009.

This was revealed during the 2011 Annual Student Affairs Excellence Awards that were held at the Qwaqwa Campus to honour academic, sport and cultural excellence. Her hard work earned Samantha the prestigious Dux student award, which makes her the best overall academic performer of the entire student body at this campus of the UFS. This award was presented to her by its sponsor, Dr Choice Makhetha, Vice-Rector: External Affairs, herself a former Dux student.
 
Considering her achievements to date, Samantha agrees with the Greek philosopher, Aristotle, who believed that  ”we are what we repeatedly do; excellence then is not an act, but a habit.” According to Samantha, one of her biggest achievements was winning a national poetry competition in 2000 whilst she was still at a primary school.
 
“I am happy to be the 2011 Dux student, as it proves that hard work indeed pays. If you commit yourself to working hard all the time and do lots of studying, then achievements like this will come your way,” she said.
 
Samantha’s immediate plan is to finish her degree and then venture into studying for an honours degree in entomology. “I would like to do my bit in the academic world. That’s where I think my future lies,” she concluded.
 
Samantha also received the award for the best-performing second-year student in the Faculty of Agricultural and Natural Sciences.

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