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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

Help to rural women to become entrepreneurs
2006-10-24

Some of the guests who attended the ceremony were, from the left: Mr Donray Malabie (Head of the Alexander Forbes Community Trust), Ms Jemina Mokgosi (one of the ladies from Tabane Village who is participating in the Women in Agriculture project), Dr Limakatso Moorosi (Head: Veterinary Services, Free State Department of Agriculture), Prof Johan Greyling (Head: UFS Department of Animal and Wildlife and Grassland Sciences) and Ms Khoboso Lehloenya (coordinator of the project from UFS Department of Animal and Wildlife and Grassland Sciences). Photo: Leonie Bolleurs\

Alexander Forbes and UFS help rural women to become entrepreneurs
 
Today, the Alexander Forbes Community Trust and the University of the Free State (UFS) joined forces to create an enabling environment for rural women to become players in the private sector.

Three years ago the UFS set up a unique small-scale household egg production project called Women in Agriculture in Thaba ‘Nchu as a pilot project. The project was officially launched today by Mr Donray Malabie, Head of the Alexander Forbes Community Trust.

The aim of the Women in Agriculture Project is to create jobs, provide food security and to help develop rural women into entrepreneurs. A total of 25 women based in Tabane Village in Thaba ‘Nchu are the beneficiaries of the project.

“This is the first project in the Free State the Alexander Forbes Community Trust is involved with.  The project would help rural women acquire the skills they need to run their own egg-production business from their homes,” said Mr Malabie. 

“The ongoing debate on the shortage of skills ignores the fact that people with little or no education at all also need training. This project is special to the Trust as it provides for the creation of sustainable jobs, food security and the transfer of much needed skills all at once, particularly at this level,” he said.

Every woman in the group started with two small mobile cages that housed 12 hens each. The units are low in cost, and made of commercially available welded mesh and a metal frame. Now, each woman has four cages with 48 hens. The group manages to collectively produce 750 eggs daily.

The eggs are currently sold to local businesses, including spaza shops and the women are using the income generated to look after their families and to further develop their business.

The Department of Animal and Wildlife and Grassland Sciences at the UFS identified the project and did the initial research into the feasibility of setting up such a project.

“A demonstration and training unit has been established at the Lengau Agricultural Development Centre and the women attended a short practical training course. Subsidies are provided for feeding, together with all the material and the lay hens necessary for the start of the business,” said Ms Khoboso Lehloenya, coordinator of the project from the Department of Animal and Wildlife and Grassland Sciences at the UFS. 

“The advantage in using lay hens is that they are resistant to diseases and the women will not need electric heating systems for the egg production,” said Ms Lehloenya. 

According to Ms Lehloenya, the women are already benefiting from their egg production businesses.  “Some of them have used the profit to buy school uniforms and tracksuits for their children and others are now able to make a monthly contribution to their household expenses,” said Ms Lehloenya. 
“In South Africa, possibly due to cultural reasons and circumstances, most black people prefer to eat older and tougher chickens, compared to younger soft commercially available broiler chickens. This preference creates a further advantage for the women. At the end of their production cycle, old hens can be sold for a higher price than point-of-lay or young hens. This brings in further money to pay for more hens,” said Ms Lehloenya.

The Alexander Forbes Trust contributed R191 000 towards the project aimed at expanding it to benefit 15 more women.

“We are in the process of recruiting an additional 15 women in Thaba ‘Nchu who will be trained by the Lengau Agricultural Development Centre in order to replicate the model and extend its reach”, said Ms Lehloenya.

Media release
Issued by: Lacea Loader
Media Representative
Tel:   (051) 401-2584
Cell:  083 645 2454
E-mail:  loaderl@mail.uovs.ac.za
20 October 2006

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