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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

Artistic development at UFS to transform the face of Bloemfontein creatively
2015-07-02

The 7-metre high ‘Urban Fox’ is one of Alex Rinsler's artworks adding a fragment of the wild to the city of Shanghai in China.

Bold, bright, and beautiful public art sculptures are in the inception phase at the university’s Bloemfontein Campus. Manchester-based public artist, Alex Rinsler, of the Programme for Innovation in Artform Development (PIAD)’s forum for artist development, is to install three enthralling sculptures in the city of Bloemfontein.

The PIAD forum for artist development is an initiative of the Vrystaat Arts Festival, formerly known as the Vryfees, which aims to celebrate art in the Free State by hosting experimental art practices. In its capacity as a PIAD partner, the University of the Free State promotes increased access to, and participation in, culture as a form of human development.

Presenting an artist’s talk titled ‘Urban Safari: Art in public space,’ on the Bloemfontein Campus recently Rinsler introduced himself and his creative ideas to students, staff, and the public at the Johannes Stegman Art Gallery. The talk served as an invitation to the active participation of Bloemfontein citizens in all phases leading to the installations. Dispersed across the Mangaung Metropolitan, the giant sculptures are intended to capture and reflect different aspects of the community’s lived experiences. 

As a public artist based in the United Kingdom (UK), Rinsler has exhibited in cities nationally and internationally, with the intention of bringing a touch of the wild to urban lives. His vision is to witness the development of cities into cultural boulevards, and explore “what we can do to bring back the sense of nature, the wild” by adding new symbolism to urban lifestyle.

“I believe in creating work accessible to the public, which stimulates conversation,” said the Clore Leadership Programme Fellow (University of Manchester) and Founder of Pirate Technics - an artistic practice company.

In 2012, he worked with 31 Master’s students from 24 countries on an icon for global peace named “Under the Baobab” in London. The colourful and magnificent Baobab tree made from pieces of fabric representing distinct cultures told the story of migration to London.

Rinsler is determined that the Bloemfontein “project, similar to the London installation, will create imagery that people will remember.”

Dr Ricardo Peach, Director of the Vrystaat Arts Festival and PIAD, hopes the project fosters diversity while producing a “communal cultural product." 

“What I know about Alex’s work is that he will be working with what he calls a self-selected community, people who are interested in this, and who want to work together to build these sculptures, as part as a process for them to get a sense of where they belong, and their input into the city. It’s about people telling their own stories.”

The public installations are a way of transforming the landscape, and connecting people of “a place like Bloemfontein where communities are often still so divided,” said Peach.

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