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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

Ex-SRC Reunion 2005
2005-01-14

The University of the Free State (UFS) is celebrating it centenary with the theme 100+. This celebration does not only focus on the past, but especially on the future for the next 100 years. The conclusion of the Centenary year will be held on 28 January 2005 together with Kovsie Day, a joint project with the UFS Centenary Festival, Student Representative Council and Rag, and includes a huge “Potjiekos” Festival.

This closing function is, however, the beginning of the future festival which reaches its climax from 4–6 February 2005. During the weekend, an SRC Reunion will be held to which all ex-SRC members are personally invited.

The weekend program briefly includes the following:

Friday, 4 February 2004

09:00 Official opening of the University with a message by the Vice-Chancellor and Rector, Prof Frederick Fourie

11:00 A massive campus photo of all on campus

19:00 Through the night together with Rag.

Saturday, 5 February 2004

08:30 Champagne breakfast at the Thakaneng Bridge

10:00 Official attendance of the Rag Procession

19:00 SRC Dinner at the Centenary Festival Complex

Sunday, 6 February 2005

18:30 A special combined Dedication service at the Red Square (Rooiplein).

It will be a great privilege for the UFS to welcome all SRC members of the past 100 years. RSVP no later than 14 January 2005 to Nicolaas du Plessis. The costs will be indicated on the RSVP form.

N.B.: The UFS would be pleased to reach all ex-members. Should you be in contact with any other members, please send this information to them or contact me at the necessary contact numbers. For more information please contact me at 084 955 0875 or Elize Rall at 051-401 3382.

Nicolaas du Plessis

SRC Officer

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