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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

Inaugural lecture challenges leaders in higher education
2012-10-30

Dr Mamphela Ramphele
Photo: Stephen Collett
29 October 2012


Lecture
(Pdf format)

According to international statistics, South Africa’s school performance is rated 140th out of 144 countries. South Africa is also ranked 143rd out of 144 countries when it comes to  the quality of mathematics and science. About 600 000 South African graduates are unemployed and about 500 000 learners are failed by our current education system.

Dr Mamphela Ramphele brought these shocking statistics to the light at the inaugural lecture of the Annual Prestige Lecture at the Faculty of Education on Thursday 25 October 2012 at the University of the Free State (UFS).

This lecture will henceforth be known as the Mamphela Ramphele Prestige Lecture.

Dr Ramphelefocused her lecture on ‘Educating the 21st century citizen’.

“One of the defining characteristics of the 21st century is the vast number of choices that confront us every day at a personal, professional and political level.”

She asked if 21st century South Africans are equipped with the skills to make the choices that confront them daily.

“The failure to transform our apartheid education into one characterized by equity and excellence, is producing graduates who lack self-confidence.”

Dr Ramphele said that in South Africa about 1/6th of government expenditure goes to education, but the outcomes remain shocking.

For Dr Ramphele the answer lies in creating platforms for open conversation about South Africa’s painful past and the agenda for radical socio-economic restructuring should include the fundamental transformation of education.

She praised the UFS, under its current inspirational leadership, for its role as change agents through the education.

Prof. Rita Niemann, senior professor at the Faculty said the Annual Mamphela Ramphele lecture is to further expand and celebrate education in South Africa.

“Dr Ramphela has given us so much food for thought by challenging leaders in higher education to speak out about the questionable state of education in South Africa and to become engaged in the ‘revolution of the spirit’ in order to deliver citizens who own and shape the country.”
 

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