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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

Prof Johan Spies learns about much more than genetics in Argentina
2014-04-23


People who attended the course enjoyed Argentina and its traditions very much.

Prof Johan Spies from the Department of Genetics visited Argentina, where he and Dr Carlos Acuna (Universidad Nacional del Nordeste, Corrientes, Argentina) presented a course for doctoral students and staff of Cerzos-Conicet Bahia Blanca (something like the equivalent of South Africa’s NRF) and Universidad Nacional del Sur, Bahia Blanca. Prof Spies presented chromosomal evolution and its effect on fertility, while Dr Acuna took care of apomixis.

Bahia Blanca is a city with a population of almost the same as that of Bloemfontein. The city lies at the mouth of the Naposta River, which almost forms a delta where it flows into the sea. Bahia Blanca (white bay) derives its name from the salt deposits that lends a white colour to the beaches.

The people are very friendly and one soon learns to extend a long arm in greeting. Otherwise you are stuck with an ‘Ola’ while men and women alike will grab even a complete stranger to plant a kiss on your cheek. For people who places great value on personal space, this friendly gesture is not always as welcome!

Barbeque is a choice dish and is usually in the form of beef rib. “It was great (especially if you shut your eyes and ignore the scrumptious fat and future heart attacks)! With the rib they usually had blood sausage and very tasty pork sausage on the grid. Everywhere people are sipping, through a silver straw, their ‘mate’ (pronounce maty), a type of tea made from the leaves and stems of Yerba paraguariensis. It is generally drunk from a special calabash ‘cup’ through a silver straw, which also serves as sift to keep the leaves from your mouth. The calabash is usually passed from one person to another, with each person taking a sip from the brew!  It is even passed around in class!  Another thing in conflict with the upbringing I received from my mother (as is the cup at communion)!,” says Prof Spies.

“My short visit also taught me that the Argentinians are a proud nation that often faced adversity in the past. Nevertheless, they do not try to change their past. Street names even refer to dates from their past when, for example, they were attacked by England (in 1807). Only the almost 30 000 people who disappeared under the military regime, are rarely talked about!,” says Prof Spies.

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