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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

UFS awards honorary doctorates during spring graduation ceremony
2004-09-20

The University of the Free State (UFS) will award three honorary doctorates this week during its spring graduation ceremony.

The graduation ceremony will take place on Wednesday 22 September 2004 and the honorary doctorates are Dr Calvin Seerveld (D Phil (hc), Prof YK Seedat (MD (hc) and Dr Mary Seely (D Sc (hc).

“The doctorates come from a wide spectrum of specialty fields and serve as proof of the UFS’s policy to give recognition to people who stand out and make a difference,” says Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS.

Dr Calvin Seerveld (D Phil (hc) will receive an honorary doctorate for his academic leadership at the Institute for Christian Studies in Toronto and the wide international recognition he has received throughout his career in various subject areas, eg philosophical aesthesia, the theory of art, the methodology of the description of the history of art and continental philosophy.

Prof YK Seedat (MD (hc) will receive an honorary doctorate for his extraordinary contribution to medicine in South Africa. His research in the field of hypertension in blacks received international recognition and significantly contributed to the understanding of the pathophysiology of this condition.

In the mid-eighties Prof Seedat was instrumental in supporting the bid from the Faculty of Medicine at the University of the Orange Free State (UOFS) to host the first Colleges of Medicine of South Africa examination in Bloemfontein. This started a tradition that is still being maintained. Prof Seedat is a researcher at the Faculty of Health Sciences at the University of Kwa-Zulu Natal.

The Executive Director of the Desert Research Foundation of Namibia, Dr Mary Seely (D Sc (hc)), will be honored for the impact she has made on the development of environmental management in the drier parts of the southern African subcontinent. Though her research has been concentrated in Namibia, she has affected the professional lives of large numbers of ecologists, environmental scientists and environmental managers.

According to Prof Fourie the three doctorates form part of the greater group of 18 who will be honored by the UFS during its centenary year. The last group will be receiving their honorary doctorates in October 2004.

 

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
20 September 2004

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