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Prof Bradley Smith addresses matrimonial property and trust law complexities

29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett

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

Regional Conference on Trafficking in Human Beings

2007-06-29

Trafficking in Human Beings:
National and International Perspectives

Date: 17th August 2007
Address: CR Swart Auditorium, University of the Free State, Bloemfontein, South Africa.

Every year thousands of children and adults become victims of trafficking and abuse in South Africa and throughout the southern African region. Victims are trafficked for a myriad of reasons: sexual exploitation, including prostitution and pornography; illegal labour, including child conscription; domestic servitude; illegal adoptions; body parts/organs; and forced marriages.

The Unit for Children’s Rights, Department of Criminal and Medical Law, University of the Free State (UFS), together with the Centre for Continuing Legal Education at UFS, will host a Regional Conference on Trafficking in Human Beings. The conference will bring together key role-players from the South African government as well as crucial international non-governmental organizations (NGOs) in the region.

Trafficking in human beings, especially women and children, is a serious violation of the human rights of the victims, as well as an extremely profitable source of income to organized crime, and needs the attention and intervention of both governmental and non-governmental institutions in South Africa.

Speakers will include representatives from the United National Office on Drugs and Crime (UNODC), the International Organization for Migration (IOM), the National Prosecuting Authority (NPA), the South African Law Reform Commission, the Unit for Children’s Rights-UFS, and NGOs Molo Songololo and Terre Des Homes, that work with child trafficking victims in South Africa and around the world.

The media are invited to report on the conference, and interview speakers and presenters Attached find programme. For more info contact the following persons.

1. Beatri Kruger - 051 401 2108 / email: krugerh.rd@mail.ufs.ac.za
2. Susan Kreston - 051 401 9562 / email: krestons.rd@mail.ufs.ac.za
3. Elizabeth Snyman – 051 401 2268 / email: snymane.rd@mail.ufs.ac.za

Programme

Trafficking in human beings:
National & international perspectives

Presented by The Unit for Children’s Rights, Department Of Criminal & Medical Law , Faculty of Law, in Conjunction with The Centre for Continuing Legal Education, University of the Free State.

Funded through the Generosity of the United States Department of State

17 AUGUST, 2007 – CR SWART AUDITORIAM

8:00-8:30 Registration & Tea
8:30-8:45 Opening & Welcome
Prof. JJ Henning, Faculty of Law
8:45-9:40 Overview & Global Perspective
Prof. Susan Kreston - Unit for Children’s Rights, Faculty of Law-UFS

9:40-10:00 TEA

10:00-10:45 International Perspectives & the Role of Organized Crime in Trafficking
Wiesje Zikkenheiner, Associate Expert
United Nations Office on Drugs & Crime, Pretoria
10:45-11:45 Identifying and Assisting Victims of Trafficking
Marija Nikolovska, Project Officer
International Organization for Migration, Pretoria

11:45-12:30 LUNCH

12:30-1:15 Prosecuting Trafficking Without Trafficking Laws
Adv. Nolwandle Qaba, Sexual Offences & Community Affairs Unit
National Prosecuting Authority, Pretoria
1:15-2:15 Recommendations for New Legislation in South Africa
Lowesa Stuurman - South African Law Reform Commission, Pretoria

2:15-2:30 TEA

2:30-2:50 The Role of Terre Des Homes in Fighting Trafficking in Children
Judith Mthombeni– Terre Des Homes, Pretoria
2:50-3:50 Trafficking in Children in South Africa – A Front Line Perspective
Patrick Solomon - Molo Songololo, Cape Town
3:50-4:00 Closing Remarks
Adv. Beatri Kruger
Department of Criminal & Medical Law - UFS

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