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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

The Shepherd Centre celebrates decade of empowering spiritual leaders
2016-08-01

The Shepherd Centre functions under the auspices of the Faculty of Theology at the University of the Free State (UFS), and arose out of a need for non-denominational adult-learning programmes for those actively involved in the ministry. According to the director, Dr Gerhard Botha, the centre came into being to assist spiritual leaders: “The Shepherd Centre takes on the shepherding responsibility for spiritual leaders of all Christian churches.”

Planning started in 2005, when the need was identified for foundation-phase education in the wider church community. Dr Botha was appointed as the director of the centre in 2006, and given the task of compiling a suitable curriculum. The aim of the curriculum is to enable spiritual leaders to provide current interpretations of scripture for a modern society. From the first handful of students a decade ago, The Shepherd Centre has grown by mid-2016 to 300 adult learners enrolled in the short learning programmes, many of which are catered for at the satellite sites in Kimberley, Koffiefontein, Kroonstad, Qwaqwa/Kestell, Thaba Nchu, Zeerust, and the South Campus of the UFS.

This initiative has extended its reach even further than the boundaries of the Free State. In 2014, Dr Botha and Prof Fanie Snyman, Dean of the Faculty of Theology, visited Ethiopia, and signed an agreement of mutual collaboration with the Full Gospel Church there. In addition, a Shepherds4Africa programme is involved in Christian communities and with Christian religious leaders in several other countries, providing training opportunities to various indigenous churches, with the greater vision of spreading the Word to all countries in Africa and beyond. Dr Botha states that their hope is to provide the tools needed in order to make the community of faith as healthy so as to build its moral fibre.

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