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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

From peasant to president; from Samora Machel to Cahora Bassa
2015-03-25

Prof Barbara Isaacman and Prof Allen Isaacman
Photo: Renè-Jean van der Berg

When the plane crashed in Mbuzini, the entire country was submerged in a profound grieving.

This is how Prof Allen Isaacman, Regents Professor of History at the University of Minnesota, described the effect President Samora Machel’s death in 1986 had on Mozambique. In a public lecture, Prof Isaacman spoke about the man, Samora Machel, and the influences that shaped Machel’s life. The event, recently hosted by the UFS International Studies Group on the Bloemfontein Campus, was part of the Stanley Trapido Seminar Programme.

Samora Machel: from peasant to president
Born in 1933 into a peasant family, Machel was allowed to advance only to the third grade in school. “And yet,” Prof Isaacman said, “he became a very prominent local peasant intellectual and ultimately one of the most significant critics of Portuguese colonialism and colonial capitalism.” Machel had a great sense of human agency and firmly believed that one is not a mere victim of circumstances. “You were born into a world, but you can change it,” Prof Isaacman explained Machel’s conviction.

From herding cattle in Chokwe, to working as male nurse, Machel went on to become the leader of the Liberation Front of Mozambique (Frelimo) and ultimately the president of his country. To this day, not only does he “capture the imagination of the Mozambican people and South Africans, but is considered one the great leaders of that moment in African history,” Prof Isaacman concluded his lecture.

Displacement, and the Delusion of Development: Cahora Bassa and Its Legacies in Mozambique, 1965–2007
Later in the day, Profs Allen and Barbara Isaacman discussed their book: ‘Displacement, and the Delusion of Development: Cahora Bassa and Its Legacies in Mozambique, 1965–2007’ at the Archives for Contemporary Affairs. As authors of the book, they investigate the history and legacies of one of Africa's largest dams, Cahora Bassa, which was built in Mozambique by the Portuguese in the late 1960s and early 1970s.

The dam was constructed under conditions of war and inaugurated after independence by a government led by Frelimo. The dam has since operated continuously, although, for many years, much of its electricity was not exported or used because armed rebels had destroyed many high voltage power line pillars. Since the end of the armed conflict in 1992, power lines have been rebuilt, and Cahora Bassa has provided electricity again, primarily to South Africa, though increasingly to the national Mozambican grid as well.

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