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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

The challenges of local governance highlighted at the JN Boshoff Memorial lecture
2014-08-26

 

Mr Kopung Ralikontsane
Photo: Jerry Mokoroane

The annual JN Boshoff memorial lecture was hosted by the Faculty of Economics and Management Sciences in conjunction with the Department of Public Management on 21 August 2014. Mr Kopung Ralikontsane, Director-general of the Free State Provincial Government, presented the keynote address, ‘Challenges Facing Local Government in Service Delivery’.

In his opening remarks, Mr Ralikontsane gave the background of the South African municipal structures, the legal framework within which they operate and the challenges they are currently facing. He added that “local government is a sphere at the coalface of service delivery and if this sphere fails, South Africa would have failed to be a developmental state.”

He said the Free State provincial government has made great strides in developing local communities, with millions of rands invested in various development projects such as water and sanitation, electrification, roads and storm water structures, community facilities and solid waste disposal.

Local government is still faced with other challenges, though. He pointed out that public employees are subject to greater scrutiny and increased demands from citizens. As a result, they have to provide better services, but within stricter limits on resources. Conflict arises due to changing relationships between public servants and citizens, downsizing, restructuring and contracting out of government services and activities.

Despite the various structures implemented by local government, municipalities are serving an ever-growing population in an economic decline. Regulations have been put into place to devise credible Integrated Development Plans (IDPs) to improve municipal infrastructure, build competent management teams and strong operations and increase technical capacity for effective delivery of services.

Mr Ralikontsane invited students to join local government in crafting innovative solutions. “We know the problem, but we need to encourage you to join forces with your local government and tackle them.”

Mr Kopung Ralikontsane has served in local government for two decades and also serves as Head of Administration of the Free State Government and as Cabinet Secretary.


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