Latest News Archive

Please select Category, Year, and then Month to display items
Previous Archive
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

Prof Antjie Krog speaks on verbalising revulsion and the collusion of men
2015-06-26

From the left are Prof Lucius Botes, UFS: Dean of the Faculty of the Humanities; Prof Helene Strauss, UFS: Department of English; Prof Pumla Gobodo-Madikizela, UFS: Trauma, Forgiveness and Reconciliation Studies; Prof Antjie Krog, UCT: Department Afrikaans and Dutch; Dr Buhle Zuma, UCT: Department of Psychology. Both Prof Strauss and Dr Zuma are partners in the Mellon Foundation research project.

“This is one of the bitterest moments I have ever endured. I would rather see my daughter carried away as a corpse than see her raped like this.”

This is one of 32 testimonies that were locked away quietly in 1902. These documents, part of the NC Havenga collection, contain the testimonies of Afrikaner women describing their experiences of sexual assault and rape at the hands of British soldiers during the South African War.

This cluster of affidavits formed the foundation of a public lecture that Prof Antjie Krog delivered at the University of the Free State’s (UFS) Bloemfontein Campus on Tuesday 23 June 2015. The lecture, entitled ‘They Couldn’t Achieve their Goal with Me: Narrating Rape during the South African War’, was the third instalment in the Vice-Chancellor’s Lecture Series on Trauma, Memory, and Representations of the Past. The series is hosted by Prof Pumla Gobodo-Madikizela, Senior Research Professor in Trauma, Forgiveness, and Reconciliation Studies at the UFS, as part of a five-year research project funded by the Andrew W. Mellon Foundation.

Verbalising revulsion

The testimonies were taken down during the last two months of the war, and “some of the women still had marks and bruises on their bodies as evidence,” Prof Krog said. The victims’ words, on the other hand, struggled to express the story their bodies told.

What are the nouns for that which one sees? What words are permissible in front of men? How does one process revulsion verbally? These are the barriers the victims – raised with Victorian reserve – faced while trying to express their trauma, Prof Krog explained.

The collusion of men

When the war ended, there was a massive drive to reconcile the Boers and the British. “Within this process of letting bygones be bygones,” Prof Krog said, “affidavits of severe violations by white men had no place. Through the collusion of men, prioritising reconciliation between two white male hierarchies, these affidavits were shelved, and, finally, had to suffer an embargo.”

“It is only when South Africa accepted a constitution based on equality and safety from violence,” Prof Krog said, “that the various levels of deeply-rooted brutality, violence, and devastation of men against the vulnerable in society seemed to burst like an evil boil into the open, leaving South African aghast in its toxic suppurations. As if, for many decades, we did not know it was there and multiplied.”

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept