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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 in partnership with USA ’s Council on Economic Education 
2006-02-01

A visit to the campus of the UFS was part of the recent NCEE workshop.  Standing from the left are Prof Soehendro (Chairperson:  National Education Standardisation Body of Indonesia), Prof Herman van Schalkwyk (Dean:  Faculty of Natural and Agricultural Sciences at the UFS), Prof Elena Reshetnyak (Vice-Dean for International Programs, Kharkiv Polytechnic Institute, Kharkiv, Ukraine) and Mrs Annely Minnaar (local coordinator of the NCEE and professional officer of the UFS Department of Agricultural Economics).  Seated are from left Prof  Sutjipto ( Chairman of the Indonesian Council on Economic Education) and Dr Patty Elder (Vice-President of the NCEE's national programme).
Photo: Stephen Collett


UFS in partnership with USA ’s Council on Economic Education 

A group of 50 teachers in Economics, learning facilitators and lecturers from eight countries attended a ‘train the trainers’ workshop this past week in Bloemfontein.  The workshop forms part of the outreach programme of the National Council on Economic Education (NCEE) in the United States of America’s (USA) effort to improve the quality of the training in Economics of teachers and lecturers across the world. 

The UFS and the Free State Department of Education are the NCEE’s first partners in Africa.  “The initiative started in the Free State because of the connection that existed between the UFS and the NCEE,” said Prof Klopper Oosthuizen, from the UFS Department of Agricultural Economics and initiator of the cooperative agreement with the NCEE.

Three faculties at the UFS are involved in the cooperative agreement namely the Faculty of Natural and Agricultural Sciences, the Faculty of the Humanities and the Faculty of Economic and Management Sciences.

A group of 84 teachers and learning facilitators in the Free State attended the ‘train the teacher’ workshop at the UFS in December 2005 in an effort to improve the quality of Economics classes at schools in the Free State.  The last national workshop will take place in June 2006 in Bloemfontein.  During this workshop a group of 40 teachers and learning facilitators in the Free State will be trained by the NCEE.    

“Because of the success with the programme in the Free State Dr Patty Elder, Vice-President of the NCEE’s national programme, announced during last week’s workshop that the initiative will now be extended to the other provinces in the country,” said Prof Oosthuizen.  According to Prof Oosthuizen discussions around a strategy to get the other provinces on board of the programme also took place between Dr Elder and Prof Herman van Schalkwyk, Dean of the UFS Faculty of Natural and Agricultural Sciences.  Prof van Schalkwyk will take the lead in this regard.  

“The presence of Dr Elder and the executive directors of similar education networks in the Ukraine and Indonesia is an indication of the NCEE’s seriousness with the programme in Africa,” said Prof Oosthuizen.

Prof Oosthuizen explained that South Africa is competing to obtain funds from the NCEE to have a total South African representation in the workshops in the following one-year training period. 

South Africa has a good chance of establishing the network quickly because of the presentation of the last national workshop in Bloemfontein in June 2006.  “We are going to try to have as much South African representation as possible at this workshop,” said Prof Oosthuizen.

Concurrent with the workshop in June 2006, a programme will be developed that will be attended by at least five other provincial education departments and representatives of five other universities.  These representatives will then be able to observe on a first-hand basis how this action learning takes place and how the participating countries plan to establish and expand their networks,” said Prof Oosthuizen.

“The NCEE has been working together with international partners since 1992 to strengthen their Economics teaching systems.  They have already succeeded in increasing literacy in Economics of schools in the USA and more than 20 East Block countries.  More than 1,5 million learners in the East Block countries have already been served by this initiative,” said Prof Oosthuizen.

According to Prof Oosthuizen the focus of the NCEE has since 2004 moved away from the East Block countries to Africa, Asia, Latin America and the Middle East.  The representatives that attended last week’s workshop were from South Africa, Egypt, Jordan, Palestine, Indonesia, Mexico, Paraguay and Uruguay.  Countries such as Egypt, who was also present at last week’s workshop, are eager to start a similar network. 

Media release
Issued by: Lacea Loader
Media Representative
Tel:   (051) 401-2584
Cell:  083 645 2454
E-mail:  loaderl.stg@mail.uovs.ac.za
31 January 2006

 
 

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