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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 study finds initiation does not build character
2015-06-24

Photo: Canva.com

Initiation at schools and school hostels does not build character or loyalty. On the contrary, it is a violation of human dignity and the rights of children.

This is the opinion of researchers from the University of the Free State’s Faculty of Education after an exploratory study of initiation practices in schools.

Although the use of initiation in schools and school hostels is forbidden by the Regulations to Prohibit Initiation Practices in Schools, the study found that this practice is still widely evident in schools. The study also found that, in some cases, teachers and/or principals take part.

In the study, led by Dr Kevin Teise from the Faculty of Education, it was found that physical deeds and even violence and emotional degradation were inflicted under the guise of ‘initiation’.

The study was discussed recently during a panel discussion between the Faculty of Education, the Faculty of Law, and the Institute for Reconciliation and Social Justice.

The ‘initiation activities’ that take place during school hours ranged from carrying senior learners’ bags or doing other favours for them, handing over their food or food money, doing senior learners’ homework, and looking down when they speak to senior learners.

In school hostels, it was found that learners were expected to do humiliating things, and were also subjected to physical demands and even violence. Learners pointed out that they were smeared and beaten, their heads pushed into toilets, they had to bath or shower in cold water, they had to eat strange things, and they were prevented from sleeping.

Dr Teise says initiation practices are a general phenomenon in the schools and school hostels that took part in the investigation. Newcomers were subjected to silly and innocent practices, but also to physically and emotionally degrading, and even dangerous ones, before and after school, and during breaks and sports- and cultural gatherings.

“The study’s findings give every indication that the constitutional principles on which the policy document, Regulations to Prohibit Initiation Practices in Schools, is modelled, are not being put into practice and respected at these schools. Policy documents and school rules are pointless if learners, old pupils, parents, teachers, and the broad community consider initiation an acceptable behaviour that is, ostensibly, an inseparable part of school or hostel tradition and of the maturation and/or team-building processes.”

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