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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

UFS offers bursaries for interpreters
2005-12-01

The Unit for Language Management (previously Unit for Language Facilitation and Empowerment) at the University of the Free State (UFS) is offering bursaries to persons who want to apply for the Post-graduate Diploma in Language Practice (interpreting) for 2006. 

The Unit was involved in the setting up of a comprehensive interpreting infrastructure at the Free State Legislature and provided the interpreting services for the Truth and Reconciliation Commission (TRC) for the latter’s full duration.

“The UFS supports a multilingual society.  Our language policy, which was approved by the Council in 2003, is a striking example.  This policy is in accordance with the national movement towards multilingualism and the recognition of language rights.  Through the training of interpreters the UFS is empowering others to exercise their language rights and to partake meaningfully in formal conversations,“ said Prof Theo du Plessis, head of the UFS Unit for Language Management (ULM). 

“The UFS has been using interpreter services at executive management meetings and other occasions such as meetings, seminars and conferences for several years.  The demand for these services has risen quite considerably.  We have found that the current three interpreters on the Main Campus will soon not be able to cope with this demand,” said Prof du Plessis.

According to Prof du Plessis institutions like the Mangaung Local Municipality and the Motheo District Municipality use the interpreter services of the ULM on a regular basis. 
“Because the demand for interpreter services is becoming so great, the demand for trained interpreters is also increasing.  This is why we are offering bursaries for persons who want to be trained as interpreters to register in 2006 for the Post-graduate Diploma in Language Practice (interpreting) as offered by the UFS Department of Afro-asiatic Studies and Language Practice and Sign Language,” said Prof du Plessis.

According to Prof du Plessis the UFS will be able to use these students on an ad-hoc basis to assist with interpreter services on the Main Campus or to deliver interpreter services to institutions outside the UFS. 

The bursaries will preferably be awarded to persons with English as mother tongue with an above average knowledge of Afrikaans or Sesotho.  The duration of the bursaries is one year and only tuition fees will be paid.  “To qualify for the bursaries, prospective students must have an undergraduate qualification,” said Prof du Plessis.

The closing date for applications is 25 January 2006.  For any enquiries, Mrs Susan Lombaard can be contacted at (051) 401-2405 or 072 605 4966 during office hours or at lombasc.hum@mail.uovs.ac.za.

Media release
Issued by: Lacea Loader
Media Representative
Tel:  (051) 401-2584
Cell:  083 645 2454
E-mail:  loaderl.stg@mail.uovs.ac.za
1 December 2005
 

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