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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

Heidedal-based foundation and UFS host inaugural music concert
2015-12-04

ROC children rock in marimba music
Photo: Valentino Ndaba

Reach Our Community (ROC) Foundation in conjunction with the University of the Free State’s Odeion School of Music (OSM) held its first-ever music concert last month. Children who form part of the foundation’s Afterschool Care programme showed their impressive music skills to their parents and guardians in attendance.

ROC provides support to orphaned and vulnerable children from early childhood through to adolescence in the Heidedal community in Bloemfontein. The foundation strives to address the challenges resulting from factors such as poverty, unemployment, HIV/Aids, single parenting, lack of guardianship, and physical and sexual abuse. In the Afterschool Care programme, the children engage in educational, cultural, and recreational activities.

Going the extra mile

Since 2008, the UFS has successfully partnered with ROC through service learning and community engagement in which students from across all seven faculties participate. Two Music Education and Practice students from the OSM took it upon themselves to continue after their curriculum requirements were met.

Amy Viljoen- now a final-year BMus student, together with fellow student, Petre du Plessis, and their lecturer and programme coordinator, Gerda Pretorius, established the music class project in Heidedal in 2014. The students embarked on weekly trips to ROC, and would spend an hour working on the recorders and marimbas with children from ROC.

This year, Viljoen and Kara-Lynn Crankshaw, a final-year BA Music student, spent eleven months teaching the children music practice and theory, culminating in a concert that both the community and students can be proud of.

“I wanted to do something that was not only meant for educational purposes, but to give back to the community,” said Viljoen.

After having to gather extra chairs because of the influx of community members at the ROC hall, the founder, Patrick Kaars, said he had not expected such a turn-out. “It exceeded my expectations, and it was a dream come true. It meant so much to the children to be exposed to music, and to explore their own capabilities and talents.”

More children will learn how to play other instruments. Currently, the instruments used for the children’s training were purchased second-hand in order to cut costs. New music education specialists, who will join the programme in 2016, will also work with Pretorius to gather additional equipment, and compile learning material.

Kaars is also thrilled about the potential expansion to the music group, now that the concert has become an annual event. The OSM is also in the process of establishing a Centre for Music Development at ROC.

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