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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

Prestige scholar, Oliver Mutanga, to continue research at University of Pavia through CICOPS scholarship
2014-12-19

 

Oliver Mutanga has been awarded a 2015 CICOPS scholarship – one of only ten researchers world-wide to be afforded this opportunity. The scholarship enables Mutanga to visit the University of Pavia in Italy from January to March next year to expand his research.

As a second-year PhD student taking part in the Vice-Chancellor’s Prestige Scholars Programme, Mutanga is well on his way to achieve his goal of becoming an internationally-recognised scholar. He is currently conducting his research at our Centre for Research on Higher Education and Development under the supervision of Prof Melanie Walker and Dr Lis Lange. In his PhD, Mutanga examines the processes through which disabled students make their educational choices and negotiate different socio-cultural and institutional structures in higher education.

During his stay in Italy, Mutanga will work with Prof Enrica Chiappero-Martinetti on the intersectionality of disability, disadvantage and other social variables. “I will also present lectures and seminars on my PhD work at Pavia University and meet with other young capabilities approach scholars,” Mutanga says.

There is a growing acknowledgement nationally and internationally that there is limited data and understanding of the framing on disability issues. As such, data on the experiences of disabled students in higher education is important and timely in preparation of the Post 2015 Development Agenda.

Mutanga’s preliminary analysis challenges the popular discourse that is so common in South African higher education debates that they receive unprepared students into their institutions. The data seems to indicate the opposite, though: that it might be the institutions that are underprepared to receive diverse students. The study advocates for a capabilities-based conception of student equity that focuses on the widening of opportunities for all students within higher education to pursue what they have reason to value.

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