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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

Environmental management – the answer to a sustainable green economy
2014-11-03



From the left are: Tshepo Moremi (Deputy Director-General), Mamotena Puleni (Personal Assistant to the Deputy Director-General) and Prof Maitland Seaman (Head of Department: Centre for Environmental Management).

Photo: Ifa Tshishonge

As part of celebrating 20 years of existence, the Centre for Environmental Management at the University of the Free State (UFS) hosted a public lecture themed, ‘The Future of Environmental Management’. Mr Tshepo Moremi, Deputy Director-General of the Department of Environmental Affairs and Tourism (Free State), portfolio Environment, Conservation and Tourism, delivered this lecture.

Mr Moremi said, “The environmental performance of South Africa must be seen in the context of our history and the country’s transition. South Africa has taken the lead in being a responsible global citizen, and we also participate in international projects in this field.”

South Africa hosts one of the richest biodiversities in the world. However, the country’s economy is still very energy - and carbon intensive.

“According to the World Health Organisation, approximately 16% of all deaths and one-third of diseases in children under the age of five years are environmentally related. Inadequate sanitation and indoor pollution are key factors,” Mr Moremi said.

“Academic institutions like the UFS and the government need to take the role of equipping citizens with skills and training so that we can overcome the challenges and seize opportunities related to the environment.

“Financing mechanisms for projects related to environmental sustainability were introduced in 2011. However, we still lack skilled capacity to run these projects smoothly and to use international and national funding strategically.

“Looking forward and responding to our challenges, it is vital that we transform our economy to be an international competitor and job-creation hub, and to be sustainably climate resilient, as outlined by the National Development Plan. Minimum standards will also be put in place to regulate emissions and monitor air quality. The sustainability of society’s well-being is important to the long-term role of environmental management in boosting our socio-economic status as a nation,” Mr Moremi said.

He emphasised that it must not only be about conserving and preserving. “Our people should benefit economically and socially,” he said.

Mr Moremi encouraged the audience to defend ideas that protect our non-speaking natural resources. “Let’s all do what we can and rise to this advocacy challenge,” he added. He also expressed his gratitude towards the university for honouring him during such a celebration and for working together in advocating for environmental issues.

The Centre for Environmental Management also hosted a strategic colloquium, discussing issues such as demography, resources, climate, water, environmental management, academic pursuance, as well as curriculum and the role of professional registration which may have an influence on the nature of its programmes.

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