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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 provides an alternative route to a BEng degree
2014-06-04

Mr Louis Lagrange
Photo: Leonie Bolleurs

The university is very excited about the establishment of a new study field at Kovsies – a BSc degree with majors in Physics and Engineering subjects. The course is presented in the Faculty of Natural and Agricultural Sciences on the Bloemfontein Campus.

Project EnSci was established at the UFS at the beginning of 2014. Twelve first-years and four second-years enrolled for the course this year.

“We replace the non-core Physics subjects with Engineering subjects. We also present all specialist Engineering subjects ourselves,” says Louis Lagrange, project manager of Projec EnSci – Engineering Science.

“There isn’t enough space at universities in South Africa to accommodate all students who are interested in engineering. The UFS course can thus be considered a fundamental engineering course. It equips a student in such a way that they will be able to specialise in various disciplines,” he says.

After completion of the three-year BSc degree at the UFS, students may choose to:

• graduate with a BSc degree majoring in Physics and Engineering subjects and enter the professional world.
• study further for an honours, master’s or doctoral degree in Physics.
• apply to register for a second degree – BEng or BScEng (for two additional years) at another university recognising the BSc degree with majors in Physics and Engineering Science. Acceptance is subject to certain requirements.

Matriculants interested in this field, must follow the application procedure of the UFS before 30 September 2014 and achieve the following in the final NSC or equivalent examination:

• an AP score of 34 or more is strongly recommended,
• cumulative AP score of 13 or more in Mathematics and Physical Science,
• completion of NBT tests and
• language of instruction – 4 or more.

These prospective students also need to complete and submit an application form. For more information contact us at engineeringsubjects@ufs.ac.za


 

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