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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 Centenary 2004/05 : October snippets
2004-10-06

CENTENARY CONFERENCE
The proposed Centenary Conference on Democracy, Diversity and Development : Towards a mature and robust society – A critical discourse, refers. Unfortunately many invited contributors are unable to attend on the proposed dates (12 to 15 October 2004) prompting the UFS management to reconsider the timing of the conference. The UFS management has therefore decided to postpone this conference until an appropriate time in 2005.

As a result of this postponement the SAUVCA activities will also no longer be part of the October programme in Bloemfontein.

CENTENARY COMPLEX
The rehabilitation of the existing Reitz Hall and adjoining residence into the Centenary Complex is almost complete.

The inauguration of the complex – Reitz Hall and DF Malherbe House – will take place on Tuesday, the 12th of October 2004. A special open day from 11:00 until 16:00 is planned to enable all staff and students to visit this prestige complex. More detail will be available early October 2004.

FILM PREMIERE
The premiere of an UFS commissioned documentary, as part of its Centenary celebrations, on the remarkable leadership, reconciliatory and nation-building role of King Moshoeshoe, the Basotho leader of the nineteenth century, will take place on Wednesday, the 13th of October 2004. The director of this commissioned documentary is the well-known Max du Preez. Although this event is open to invited guests only, the documentary will also be screened by the SABC later this year. It will also be screened at several other occasions to enable staff and students to experience and discuss this film.

With this film and other projects the University of the Free State wishes to celebrate the legacy of this extraordinary African leader for the Free State and for South Africa.

CENTENARY HONORARY DOCTORATE GRADUATION CEREMONY
A special Honorary Doctorate Graduation Ceremony will take place on the 14th of October 2004 at 19:00 in front of the Main Building on the UFS campus. Twelve honorary doctorate degrees will be awarded to a diverse group of outstanding South Africans and international scholars. The Rector requests the attendance of all staff and students in large numbers during this prestige event.

The following candidates will receive an honorary doctorate degree: Me Antjie Krog, Prof Jakes Gerwel, Mr Karel Schoeman, Dr Frederick van Zyl Slabbert, Prof Saleem Badat, Dr Khotso Mokhele, Prof Robert Bringle, Prof Leo Quayle, Prof Jack de Wet, Prof Kerneels Nel (posthumous), Prof Boelie Wessels en Prof Jaap Steyn .

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