Latest News Archive

Please select Category, Year, and then Month to display items
Previous Archive
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

Census 2011 overshadowed by vuvuzela announcements
2012-11-20

Mike Schüssler, economist
Photo: Hannes Pieterse
15 November 2012

Census 2011 contains good statistics but these are overshadowed by vuvuzela announcements and a selective approach, economist Mike Schüssler said at a presentation at the UFS.

“Why highlight one inequality and not another success factor? Is Government that negative about itself?” Mr Schüssler, owner of Economist.co.za, asked.

“Why is all the good news such as home ownership, water, lights, cars, cellphones, etc. put on the back burner? For example, we have more rooms than people in our primary residence. Data shows that a third of Africans have a second home. Why are some statistics that are racially based not made available, e.g. orphans? So are “bad” statistics not always presented?”

He highlighted statistics that did not get the necessary attention in the media. One such statistic is that black South Africans earn 46% of all income compared to 39% of whites. The census also showed that black South Africans fully own nearly ten times the amount of houses that whites do. Another statistic is that black South Africans are the only population group to have a younger median age. “This is against worldwide trends and in all likelihood has to do with AIDS. It is killing black South Africans more than other race groups.”

Mr Schüssler also gave insight into education. He said education does count when earnings are taken into account. “I could easily say that the average degree earns nearly five times more than a matric and the average matric earns twice the pay of a grade 11.”

He also mentioned that people lie in surveys. On the expenditure side he said, “People apparently do not admit that they gamble or drink or smoke when asked. They also do not eat out but when looking at industry and sector sales, this is exposed and the CPI is, for example, reweighted. They forget their food expenditure and brag about their cars. They seemingly spend massively on houses but little on maintenance. They spend more than they earn.”

“On income, the lie is that people forget or do not know the difference between gross and net salaries. People forget garnishee orders, loan repayments and certainly do not have an idea what companies pay on their behalf to pensions and medical aid. People want to keep getting social grants so they are more motivated to forget income. People are scared of taxes too so they lower income when asked. They spend more than they earn in many categories.”

On household assets Mr Schüssler said South Africans are asset rich but income poor. Over 8,3 million black African families stay in brick or concrete houses out of a total of 11,2 million total. About 4,9 million black families own their own home fully while only 502 000 whites do (fully paid off or nearly ten times more black families own their own homes fully). Just over 880 000 black South Africans are paying off their homes while 518 000 white families are.

Other interesting statistics are that 13,2 million people work, 22,5 million have bank accounts, 19,6 million have credit records. Thirty percent of households have cars, 90% of households have cellphones and 80% of households have TVs.
 

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept