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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

“Breakthroughs depend on people believing in their own ideas”
2015-07-23


TED is a renowned international non-profit organisation dedicated to disseminating “ideas worth spreading” in the form compelling talks lasting up to 18 minutes.

Lerothodi Molete’s vision is to witness the youth of Bloemfontein emerge at the forefront of technological, scientific, and entrepreneurial innovations in both South Africa and the global arena.

 

Molete and Bonginkosi Leeuw are the organisers of TEDxUFS. Their duty is centered on inspiring people to believe in, and express, their ideas. These University of the Free State students have taken it upon themselves to inspire the youth to “push the boundaries of society.”

 

The second TEDxUFS event to be hosted by the university presents a unique opportunity for students, staff members, and the general public to mingle with influential speakers from across various disciplines.

 

Details of the event:

 

Date: Saturday 1 August 2015

Time: 08:00- 18:00

Venue: Albert Wessels Auditorium, Bloemfontein Campus

 

The keynote speakers include: Mmusi Maimane (Federal Leader: Democratic Alliance), Gareth Cliff (Radio personality: Cliff Central), Pieter Geldenhuys (Futurist), Brian Kally (Director: Arrow Logistics), Jonathan Jansen (Vice-Chancellor and Rector: UFS), Ricardo Peach (Director: Vrystaat Arts Festival, Pamela Nomvete (Former actor and writer), Gil Oved (Founder: Creative Counsel), Pepe Marais (CEO: Joe Public), Angelo Mockie (Senior Officer: Student Affairs and musician), Philippa Tumubweinee (Senior Lecturer in Architecture: UFS), and Melody Mentz (Psychology Senior Professor: UFS).

 

The reason behind the #AskWhy theme

 

"Why is a small word but it’s a quick, broad, sharp and abrupt one,” explains Leeuw. “It is the chosen word of the non-conformist, the defiant, and the visionary. It is a confrontational word. It challenges what is thought to be impossible.”

 

The ability to interrogate reality is what society and economies are built on. The absence of the fear to question encourages the capacity to progress.

 

Motivating young people to follow their dreams is the reason why the TEDxUFS team is persistent in their endeavours. Molete believes that, in order to change anything, people need to ask why.

 

Background of the innovation powerhouse called TED(x)

 

TED is a renowned international non-profit organisation dedicated to disseminating “ideas worth spreading” in the form compelling talks lasting up to 18 minutes.

 

In 1984, it was introduced as a conference exploring Technology, Entertainment, and Design. Three decades later, TED covers a wide variety of topics of global significance, reflecting the contemporary era in more than 100 languages.

 

TEDx events are under the TED umbrella. These events are organised independently, and create a platform for deliberating on local matters. The programme assists communities, organisations, and individuals to stimulate critical dialogue.

 

On 25 July 2014, the UFS hosted its inaugural TEDxUFS conference at the Odeion theatre on the Bloemfontein Campus, where eleven speakers addressed an audience of 150 people on interdisciplinary topics ranging from economics to entrepreneurship, technology, art, design, and theology.

 

This year, 200 seats will be available for innovative revolutionary individuals in search of inspiration.

 

Tickets are available at 0619284253 / 079 381 4126. Prices: R80 (Student/scholars) and R350 (Public/staff)

 

LINKS:

Lerothodi Molete- http://whoswho.co.za/lerothodi-molete-742022

Bonginkosi Leeuw- https://www.ted.com/tedx/events/10499

TEDxUFS- http://kovsielife.ufs.ac.za/templates/archive.aspx?news=276

Mmusi Maimane- http://whoswho.co.za/mmusi-maimane-44612

Garett Cliff- http://www.garethcliff.com/

Pieter Geldenhuys- http://pietergeldenhuys.com/

Brian Kally- https://za.linkedin.com/pub/brian-kally/4b/888/959

Jonathan Jansen- http://www.ufs.ac.za/adhoc-pages/rectorate/prof-(jd)-jonathan-jansen

Ricardo Peach- http://ricardopeach.com/

Pamela Nomvete- http://whoswho.co.za/pamela-nomvete-4789

Gil Ovid- https://za.linkedin.com/pub/gil-oved/3/910/892

Pepe Marais- http://joepublic.co.za/people

Angelo Mockie- https://za.linkedin.com/pub/angelo-mockie/27/56/302

PhilippaTumubweinee- http://natagri.ufs.ac.za/templates/staffmember.aspx?DCode=101&pid=zyNJm7KI%2b1k%3d

Melody Mentz- https://za.linkedin.com/in/melodymentz

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