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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

African historian honoured at UFS Library book launch
2016-08-23

Description: Library book launch Tags: Library book launch

The UFS Library, in collaboration with the Department of Political Studies and Governance, launched This Present Darkness, a book by the late Stephen Ellis on 23 August 2016 at the Sasol Library on the Bloemfontein Campus.

Stephen Ellis was a Professor in the Faculty of Social Sciences at Vrije Universiteit, Amsterdam, and a senior researcher at the African Studies Centre, Leiden. He wrote ground-breaking books on the ANC, the Liberian Civil War, religion and politics in Africa, and the history of Madagascar.  He died in 2015.

The book explores how Nigerian criminal syndicates acquired a reputation for involvement in drug-trafficking, fraud, cyber-crime, and other types of criminal activity. Successful Nigerian criminal networks have a global reach, interacting with their Italian, Latin American, and Russian counterparts. Yet in 1944, a British colonial official wrote that “the number of persistent and professional criminals is not great in Nigeria” and that “crime as a career has so far made little appeal to the young Nigerian.”

Ellis, a celebrated Africanist, traces the origins of Nigerian organised crime to the last years of colonial rule, when nationalist politicians acquired power at regional level. In need of funds for campaigning, they offered government contracts to foreign businesses in return for kickbacks, a pattern that recurs to this day. Political corruption encouraged a wider disrespect for the law that spread throughout Nigerian society. When the country’s oil boom came to an end in the early 1980s, young Nigerian college graduates headed abroad, eager to make money by any means. Nigerian crime went global, and new criminal markets are emerging all over the world at present.

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