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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

President of Spelman College delivered Second Annual Reconciliation Lecture
2013-08-12

 

Dr Beverly Daniel Tatum
12 August 2013

Dr Beverly Tatum lecture (pdf)
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The United States have much to learn from South Africa about reconciliation. This is according to Dr Beverly Daniel Tatum, president of Spelman College, the oldest college for African American women in the US. Delivering the Second Annual Reconciliation Lecture on our Bloemfontein Campus, Dr Tatum –an internationally-acclaimed educator and expert on race relations –said five years after the US elected its first black president, the country still finds it difficult to make peace with the painful truth of its past.

Drawing inspiration from a speech made by former president Nelson Mandela at the adoption of the South African constitution in 1996, Dr Tatum said it requires courage to engage in a meaningful way with those we have been socialised to mistrust.

Dr Tatum highlighted the shooting of the US teenager Trayvon Martin, who was killed in Florida in an incident many attributed to racial profiling. The unarmed Martin, while out walking in the evening to buy a snack, was accosted and shot by neighbourhood watchman George Zimmerman who suspected him to be a potential thief. 

“How do we move beyond stereotypes to more authentic knowledge of one another?” she posed the question to a packed Reitz Hall in the Centenary Complex. 

Dr Tatum, author of the critically-acclaimed books, Can We Talk about Race? and Why Are All the Black Kids Sitting Together in the Cafeteria? said we have to be brave enough to have our assumptions challenged. 

“If we want a better society, one characterised by strength, trust and unity, we must interrupt the cycle and there is no better place to do it than at a university like this one, where the next generation of leaders is being prepared. But it requires intentionality. It takes practice.”

During her two-day visit, she also met with postgraduate students from the Faculty of Education to discuss social cohesion at schools. She also took part in a roundtable discussion with educators from the UFS and other universities, deliberating the topicLeading with/for/against differences on university campuses.

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