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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

SRC elections: A first for UFS main campus
2005-08-14

Students on the main campus of the of the University of the Free State (UFS) will this week for the first time vote for the Student Representative Council (SRC) using two voting systems: proportional representation (PR) and first-past-the-post. 

According to the Vice-Rector, Student Affairs, Dr Ezekiel Moraka, this year’s elections are a milestone for the UFS as it will be the first time that the main campus SRC will be elected according to the amended SRC constitution, which was approved by the UFS Council in June 2005.

“It is also a major breakthrough for student governance and transformation of the UFS main campus and constitutes a legitimate basis for the democratic participation of all students at the UFS main campus in the governance of the university,” said Dr Moraka.

The amended constitution of the main campus SRC determines that nine of the 18 SRC members must be elected by means of proportional representation and nine on the basis of an individual, first-past-the-post election.
 
According to Dr Moraka, the introduction of the proportional representation system follows earlier calls by some student formations, notably Sasco and the ANC Youth League, for such a system to be introduced at the UFS main campus in Bloemfontein.

The new main campus SRC constitution is the result of consensus reached during a lengthy negotiation process involving diverse student formations such as Sasco, the ANC Youth League, the Young Communist League, the ACDP, HEREXVII, KovsieAlliance, as well as the democratically elected SRC members of the main campus.

“Independent persons such as Mr Jack Klaas and Mr Kobus van Loggerenberg, a former SRC President, facilitated the negotiation process,” said Dr Moraka.

Students on the main campus in Bloemfontein will vote for a new SRC on Monday 15 August 2005.

SRC elections will also take place on the other two campuses of the UFS, which have their own SRC structures.

Students on the UFS-Vista campus in Bloemfontein will vote for a new SRC on Monday 15 August 2005 and Tuesday 16 August 2005.

At the Qwaqwa campus of the UFS, students will vote for a new SRC on Friday 26 August 2005.

The election processes on all three campuses will be closely monitored by independent electoral bodies. 

After the three campuses have elected their respective SRCs a central SRC will be constituted.  The central SRC will have 12 members made up of delegates of the three campus SRCs, including the presidents of these three SRCs. The main campus will have five representatives, the Qwaqwa campus will have four representatives and the Vista campus will have three representatives.

Main campus voting schedule:
Monday 15 August 2005 from 07:00-21:00.  Ten voting stations will be set up across the campus.  The results will be announced on Tuesday 16 August 2005.

Vista campus voting schedule:
Monday 15 August 2005 and Tuesday 16 August 2005 from 09:00-18:00 in the administration building.  The results will be announced on Wednesday 17 August 2005.
 
Qwaqwa campus voting schedule:
Friday 26 August 2005 from 09:00-18:00 in the Senate Hall.  If there is no objection to the final results, it will be announced on the same day.


Media release

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

14 August 2005
 

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