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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

UFS Law students take on the world
2007-03-25

Back, from left: Prof. Elizabeth Snyman-Van Deventer (Associate Professor at the Department of Mercantile Law, UFS), Lucien Companie, Dee Leboela, Sunette Visser and Mr Jaco Deacon (Lecturer at the Department of Mercantile Law, UFS). Front, from left: Mr Van Aswegen (Naudes Attorneys), Prof Rita-Marie Jansen (Associate Professor at the Department of Private Law, UFS), J.C. Smith and Vicky Olivier.

Photo: Stephen Collett

A team of eight students from the Faculty of Law at the University of the Free State (UFS) will compete in an international arbitration competition in Vienna, Austria, from 30 March to 5 April 2007.

The Willem C. Vis International Commercial Arbitration Moot is an annual competition organised by the Institute of International Commercial Law at the Pace University School of Law in New York, USA. The goal of the competition is to foster the study of international commercial law and to train students in methods of alternative dispute resolution.

Students will be judged on two crucial phases: the preparation of memoranda for the claimant and respondent, and the presentation of oral arguments before an arbitral tribunal. “The Moot teaches the basic framework of international arbitration and the application of the uniform sales law to all participating students during the preparation of the memoranda and the oral arguments,” says one of the team members, Dee Leboela, who also took part in last year’s competition.

“This competition definitely prepares students for the legal practice in all facets, whether as advocate, legislator or other areas,” added Deman Smit, one of the team members who also took part last year.

This competition brings together students from a range of legal systems and cultures from all over the world to learn from the process and from each other. “This encourages the development of social competence, and lifelong skills that are needed in our profession, of which social relations play an important role,” says Leboela.

In its maiden participation last year the UFS did not disappoint, with the highest score of 49 out of 50 and the lowest being 38 out of 50. This year the UFS will compete with 178 universities from 51 countries. “With the right strategy, which involves selecting the students on academic merit and excellent advocacy skills, I believe we would make it to the top 32,” says Leboela with confidence.

The UFS team is Leboela, Smit, Lucien Companie, Vicky Olivier, Sunette Visser, Qaqamba Vellem, Hanno Bekker and Lucy Nthotso.
 

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