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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

Students have a responsibility in SA, says Ntuli
2016-02-19

Description: 2016 SRC presidents Tags: 2016 SRC presidents

Lindokuhle Ntuli (left), President of the Student Representative Council (SRC) on the Bloemfontein Campus of the University of the Free State (UFS), and Paseka Sikhosana, president of the SRC on the Qwaqwa Campus, are in agreement about their vision for the UFS in 2016.
Photo: Johan Roux

You and I have a role to play in building the new South Africa built upon the Constitution of 1996.

These are the words of Lindokuhle Ntuli, President of the Student Representative Council (SRC) on the Bloemfontein Campus of the University of the Free State (UFS). They echo his and the SRC’s message of a “campus for all students, locally and internationally, irrespective of colour.”

Ntuli and Paseka Sikhosana, president of the SRC on the Qwaqwa Campus, were in agreement about their vision for the UFS in 2016.

According to Sikhosana, a well-known slogan accentuates a feeling of uniqueness at the university. “United in diversity. No wonder we say only a Kovsie knows a feeling,” he says.

“As the SRC, we believe that complete transformation on campus is through promoting a non-sexist, non-racial, but democratic student society that acknowledges diversity and change. That further promotes and embraces one student’s difference in terms of culture, tradition, religion, and sexual orientation.”

A new South Africa

Ntuli means students have a responsibility. He referred to a quotation from Frantz Fanon’s book, The Wretched of the Earth, to illustrate this. Fanon was a revolutionary and writer whose works are influential in post-colonial studies. “Every generation has a mission. It is the responsibility of every generation to discover its mission. Once you have discovered it, you have to fulfil it or betray it into relative obscurity,” Ntuli quoted.

According to him, the South African Constitution holds pious promises of a better life for all, and each citizen needs to help to achieve that.

SRC has open door policy 

Ntuli says the UFS remains committed to human embrace, diversity, integration, and human togetherness. He added that the SRC has an open door policy, and will avail itself in helping students.

According to Sikhosana, it is the objective of the SRC to represent the student community in all interactions within the university and externally.

“There is nothing for us, about us, without us students,” he says.

• The above excerpts have been taken from Ntuli and Sikhosana’s respective welcoming speeches to first-year students on the Bloemfontein and Qwaqwa Campuses.

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