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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 invests in community journalists
2013-12-09

The first group of journalists who completed the Department of Communication Science’s short-learning programme for community journalists. The course was developed by Mrs Willemien Marais (far left) and Mrs Margaret Linström (far right). In front in the middle are Prof Lucius Botes, Dean of the Faculty of the Humanities, and Mr Lumko Mtimde, CEO of the Media Development and Diversity Agency, the sponsor of the programme. Fifth from right is Ms Manana Monareng Wa Stone, Programme Manager of the MDDA.

An investment in our people, our region and our democracy. This is the value of the Department of Communication Science’s short-learning programme for community journalists.

The first 20 community journalists from radio stations and newspapers in the Free State and Northern Cape received their certificates recently after successfully completing the course Basic Journalism Skills for Community Media.

This credit-bearing short-learning programme is fully sponsored by the Media Development and Diversity Agency (MDDA), a statutory body with the aim of developing and promoting community media.

The University of the Free State (UFS) is the first university in South Africa that presents a course of this nature. “It is also the first large-scale formal training of community journalists in the Free State and Northern Cape,” says Mrs Margaret Linström, journalism lecturer in the Department of Communication Science. She developed the course together with another journalism lecturer in the Department, Mrs Willemien Marais. “What distinguishes our programme for similar programmes is the element of mentoring,” explains Marais. Students attend a week-long training session on the Bloemfontein Campus of the UFS. The lecturers then visit all the participating newsrooms to provide further training in terms of the unique challenges of their area. “During the second semester we’ve travelled more than 3000 km to visit radio stations and newspapers as far afield as Springbok and Phuthaditjhaba,” says Linström.

During the certificate ceremony the CEO of the MDDA, Mr Lumko Mtimde, said this partnership with the UFS has the potential to make a tangible difference in communities. “Combined community media reaches the largest target audience in the country. Against this background the importance of training community journalists becomes very clear,” says Mtimde.

The role of community journalists differ from that of journalists who work for state or commercial media. Yet most of these community journalists fall outside the network of formal training, mostly due to a lack of resources and access to training.

“This course has changed my life. I came back as a newborn baby for whom everything is new!” said Mr Setona Selisa from Naledi FM in Senekal. Selisa and his colleague, Mr Teboho Mabuya, received the award for the best participants of the 2013 course.

 

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