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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

Food insecurity should not stand in the way of education
2015-06-11

 

Every year, hundreds of students drop out of university due to financial difficulties – only to return to dire financial circumstances. It is only a few who manage to secure a bursary to fund their studies. These bursaries often pay only for academic and residential expenses, leaving students without additional funding for food.

The University of the Free State realized that up to 60% of its students were food insecure. Many of these students admitted to having to work after class to buy food or having to beg from friends. In 2011, the UFS launched the No Student Hungry Bursary Programme (NSH), which provides modest food bursaries to food insecure students. Currently, 130 students receive food bursaries from the programme to ensure they have one less thing to worry about while they are studying.

This year, at our Autumn Graduation Ceremony, six beneficiaries of the NSH Bursary Programme, received their degrees – an achievement all them feel they could not have reached was it not for the support by NSH.

For Tshililo Nethengwe, accounting student from Venda, her first year at university in 2012 was a daily battle. Although her parents managed to pay her study and accommodation fees, the meager monthly food allowance her parents could afford was not enough to last her the month.

“Every morning I used to tell myself not to think about food because I am here to study. Somehow, I still managed to get something to eat – even if it was just a few slices of bread a day. I was very determined to succeed in my studies, and NSH took away the burden of needing to ‘hustle’ and beg for food.”

Tshililo was one of six NSH recipients who received their degrees and is now doing her honours in B.Com Accounting.

“The NSH Bursary Programme invests in potential, and supports academic achievers who come from challenging backgrounds,” explains Vicky Simpson, co-ordinator of NSH.

“We promote the success of undergraduate students, enabling them to focus on their studies and not on where their next meal will come from. Successful graduates will have a positive and direct impact on our economy, different communities, and many households.”

The NSH food bursary is awarded to students on the basis of financial need, academic excellence, and the commitment to serve the community. We have helped more than 500 students since 2011, when Prof Jonathan Jansen, Vice-Chancellor and Rector, started NSH.

“These students share amazing stories that inspire us. Many had to endure hardship, but they managed to persevere, worked hard, and made it to university. The ability to buy a meal makes an enormous difference.”

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