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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

Mellon Foundation awards R10 million research grant to Trauma, Forgiveness and Reconciliation Studies
2015-02-20

Prof Pumla Gobodo-Madikizela, Senior Research Professor in Trauma, Forgiveness and Reconciliation Studies, and Dr Saleem Badat, Programme Director at the Mellon Foundation.
Photo: Johan Roux

Through her profound insight, vast experience, and unfaltering belief in humanity, Prof Pumla Gobodo-Madikizela, has secured a R10 million grant from one of the world’s most prestigious foundations funding human sciences research.

“This is one of the biggest grants that the Andrew W. Mellon Foundation has awarded to a university”, said Dr Saleem Badat, Program Director: International Higher Education and Strategic Projects at the Mellon Foundation. Prof Badat attended the press event that took place on 16 February 2015 on our Bloemfontein Campus.

UFS Trauma, Forgiveness, and Reconciliation Studies, spearheaded by Prof Gobodo-Madikizela, will manage the research project.

Prof Jonathan Jansen, Vice-Chancellor and Rector of the UFS, expressed great excitement “about this particular grant and the subject on which it focuses is so incredibly timely and germane to our own situation.”

Trauma, Memory and Representations of the Past: Transforming Scholarship in the Humanities and Arts

This new-found partnership between the Mellon Foundation and the UFS will enable a five-year research programme. The focus area of this initiative will be ‘Trauma, Memory and Representations of the Past: Transforming Scholarship in the Humanities and Arts’.

The research will pivot specifically around the question of how trauma is transmitted from one generation to the next. “South Africa lends itself to these questions,” Prof Gobodo-Madikizela said, “because we are now dealing with a generation of young people who were born after the traumas of the past.” These past experiences, though, are “passed on to the younger generation and become their own stories and narratives as if they themselves experienced the traumas directly.”

“This is an investment in how we can in fact create a different kind of community,” Prof Jansen said, “in which we eventually recognise each other – not by the accident of our skin, but by that elusive sense of a common humanity.”

Arts and theatre

Other aspects critical to this study are the inclusion of the arts and theatre. Many people have great difficulty in expressing their experiences of trauma in the spoken word. The arts and theatre provide an ideal platform to engage the public and stimulate conversation. As an example of the power these platforms possess, Prof Gobodo-Madikizela highlighted the success of the Johannes Stegmann Art Gallery – situated on the Bloemfontein Campus and curated by Angela de Jesus – in engaging the public in very productive ways.

Participants

Some of the artists, directors and scholars who will join in this project include:

• Lara Foot-Newton, Director/Playwright
• Sue Williamson, Activist Artist
• Angela de Jesus, Visual Artist/Curator
• Dr Buhle Zuma, Social Psychology Research
• Dr Shose Khessi, Social Psychology Research
• Prof Tamara Shefer, Women’s and Gender Studies
• Prof Kopano Ratele, Gender/Men and Masculinities
• Prof Jan Coetzee, Sociology of Developing Societies
• Prof Helene Strauss, Literary and Cultural Studies

New intellectual frontiers

“There is an aspiration in this proposal,” Dr Saleem Badat said. “We were born through this pain of colonialism and apartheid; we even went through the TRC. Our scholars in this country, our universities, should be at the forefront of this research. This is not research we can leave to the institutions in the north.”

Prof Gobodo-Madikizela agreed. “The overarching theme of this work is new knowledge production, focusing on the experiences in South Africa as experiences that can teach us something new.”

This will serve not only South Africa, but can also establish support for, and inform, countries facing similar dilemmas. In fact, “any part of the world in which genocide and murder and racism remains as legacies from the past,” Dr Badat said.

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