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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

Diversity gains ground in SRC election
2005-08-19

 

The University of the Free State (UFS) reached another milestone in its transformation process last night (Tuesday 16 August 2005) when a more diverse group of students than ever before were elected to serve on the Main Campus SRC.  

In addition to this, the UFS experienced a smooth and problem-free election process – unlike recent years when the Main Campus SRC elections were frequently disrupted or marred by attempts of intimidation or obstruction.

The election took place on Monday 15 August 2005 and the results were announced last night (Tuesday 16 August 2005) by Dr Ezekiel Moraka, Vice-Rector:  Student Affairs at the UFS.

Seven black students are to serve on the Main Campus SRC, the highest number of black students ever to be elected on the Main Campus SRC since black students were admitted to the UFS in the late 1980’s. 

Nine of the 18 SRC members were directly elected and nine on the basis of proportional representation (PR).   The PR system was introduced after amendments to the constitution of the Main Campus SRC were approved by the UFS Council in June 2005. 

According to Dr Moraka the elections on the Main Campus were a resounding success.  “We received double the amount of votes this year: A total of 4 846 votes were cast, while 396 votes were spoilt.  Last year only 2 192 votes were cast,” said Dr Moraka.

Dr Moraka said that there were no disruptions of the process and no objections regarding the voting process were received.

Mr Graeme Bradley, thirdyear student in B Com Human Resource Management, was elected as SRC President of the Main Campus for 2005/2006.  Mr Bradley was SRC representative for Sports, Arts and Culture in 2004/2005.

In the PR section of the election, Here XVII (with 36,1% of  the vote) and Sasco (with 36% of the vote) received an equal amount of seats (3) for the SRC.  These percentages also provided them with fourteen (14) seats for the Student Parliament, which consists of 40 seats. 

“This outcome is significant to us as, for the first time we have a clear indication of what the actual support of these affiliated organisations is on campus,” said Dr Moraka.  


Media release

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

17 August 2005
 

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