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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

2014 Intravarsity – with a twist
2014-08-12

   

 

The battle of the campuses took place over the weekend of 8–10 August 2014 as our Bloemfontein Campus hosted our Qwaqwa counterparts for the 2014 Intravarsity.

This year the event provided some exhilarating twists to the usual competition. With the theme, ‘Made at Kovsies’, the programme made room for some new and innovative activities. The new setup may even become the format for future intra- and intervarsity events at Kovsies.

For those courageous of heart and daring of body, Vishuis offered the Gladiator games. This resulted in loads of competitive fun and entertainment. On a less physical level, this year also introduced the Kovsie Gaming League. The event presented an electronic sports tournament in which students could battle it out in a digital gaming environment.

The Ultimate Frisbee tournament guaranteed a host of awkward jumps, long stretches and hearts pumping furiously. In celebration of Women’s month, a Women’s Day Fun Run was also incorporated into the weekend.

It was not a case of out with the old, in with the new, though. The usual codes like soccer, volleyball, basketball, chess and table tennis still occupied their rightful places on the programme. But this time round, cultural activities also received a place in the limelight.

A Kovsie United Music Festival provided a safe social environment for students to enjoy themselves in – and scores of feet trampled into the Rag Farm . The two campuses also engaged in a healthy clash of words during the debating event.

Most will agree, though, that the best was kept for last. The Kovsie Sêr finals on Saturday night swept each and every one up in a wave of music and cheer. The Qwaqwa sêr group, Unspoken, made their mark during the evening as they delivered an inspired guest performance. 

The winners of the various events at the 2014 Intravarsity were:

  • Basketball – East College
  • Ultimate Frisbee – East College
  • Table Tennis – North College
  • Gladiators – South College (Ladies) and West College (Men)
  • Winners of Song – Central College
  • Winners of War Cry – Central College
  • Volleyball – South College (Men) and East College (Ladies)
  • Chess – West College and Qwaqwa
  • Soccer – South College (Men) and North College (Ladies)
  • Sêr – Veritas (Men) and Soetdoring (Ladies)

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