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

Cornell academic focuses on international trade in inaugural lecture at the UFS
2013-11-12

 
Prof Muna Ndulo
Photo: Stephen Collett
12 November 2013

Prof Muna Ndulo, Professor at the Cornell Law School, delivered his inaugural lecture as Extraordinary Professor in the Department of Mercantile Law at the University of the Free State (UFS). The topic of his lecture was: Facilitating regional and world trade through international trade.

With this topic, Prof Ndulo said that trade is a recognised contributor to the Growth Domestic Product of countries and its role can be used to reduce global poverty and inequality. “Although Africa’s GDP is 5-6% on average, with a positive increase in direct foreign investments, its meaningful participation in world trade has been decimal,” he said.

Trade between African countries is 12%, which is the lowest in the world. This is in comparison to intercontinental trade in European states (72%), North America (48%), Asia (52%) and 26% in Latin America. The EU and USA are Africa’s key export markets. High transport costs, import substitution, intra-regional transactions, conflict of rules and bills of exchange remain as challenges. There are also no common standards with regards to the development of manpower as an important factor in production.

Prof Ndulo suggested solutions which Africa can use to achieve harmonisation. This includes the introduction of normative rules designed in a framework of a treaty. A modern law approach could be used to develop legislation and ensure uniformity; and lastly, the formulation of commercial customs and practice. “Harmonisation demands a high level of expertise and quality research,” said Prof Ndulo.

He added: “When legislation is developed, it must resemble the needs of our trade laws in order to maximise benefits.”

He concluded that, for harmonisation to be achieved, the political environment must play a major role in regional and world trade.

Prof Elizabeth Snyman-Van Deventer, Head of the Department of Mercantile Law, made sincere closing remarks on how much we as a continent have become an enemy of our own self by not having trade relationships among ourselves as Africans. Prof Snyman urged those in the legal fraternity to be part of the harmonisation of trade laws and eliminate the barriers by improving legislation.

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