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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

From a dream to a reality: Free State Mother and Child Academic Hospital
2016-08-31

Description: Free State Mother and Child Academic Hospital  Tags: Free State Mother and Child Academic Hospital

The message, From a dream to a reality, echoed
throughout the launch of the Mother and
Child Academic Hospital. From left to right:
Dr Khotso Mokhele, Chancellor of the UFS,
Rolene Strauss, Miss World 2014 and
Patron of the Mother and Child Academic Hospital,
Prof André Venter, Head of the Department of
Paediatrics and Child Health, and Dr Riaan Els,
CEO of the Fuchs Foundation South Africa.
Photo: Charl Devenish

“Sometimes dreams do come true, and finally, this institution is starting to dream big dreams.” These were the words of Dr Khotso Mokhele, Chancellor of the University of the Free State (UFS) at the launch of the Free State Mother and Child Academic Hospital collaborative initiative. The launch was an official declaration of intentions regarding the establishing of the hospital, a specialist unit which will focus on paediatric and maternal healthcare, fully supported by the Department of Health in the Free State. As the first Mother and Child Hospital in South Africa, it will be unique.

Under the leadership of Prof André Venter, the UFS Department of Paediatrics and Child Health serves over 250 000 children of the southern regions of the Free State at secondary care level, and is responsible for the tertiary care of nearly one million children from the whole of the Free State and Northern Cape Provinces, as well as some children from Northwest and Eastern Cape Provinces and Lesotho.

As part of a multi-faceted initiative, the 350-bed mother and child hospital will benefit the community of the Free State greatly, and will support the objectives of the Strategic Development Goals. It will further Free State Strategic Transformation Plan (STP) by improving access to healthcare for the most vulnerable members of the population, thus reducing paediatric mortality and improving maternal health. An additional objective of the project is to develop academic excellence, and improve the environment in which medical specialists and subspecialists develop their skills according to international standards.

Prof Jonathan Jansen, Vice-chancellor and Rector of the UFS, described the project as one which captures the head and the heart, as it caters most for little lives, a hub wherein great talent and potential waits to be unleashed. In support of the project, the university has offered a piece of land on the campus where the hospital will be built, thus strengthening the quality of tertiary education.

Former Miss World, Mrs Rolene Strauss, also pledged her support. She said she is honoured to be the patron of the project, one she believes will lead to healthier women, healthier children, and a healthier nation.

In celebration of the 50th anniversary of the Fuchs Foundation, CEO Dr Riaan Els, awarded a donation of R2250000 towards the building of the hospital, a contribution which will bring the project a step closer to its realisation.

Prof André Venter, leader of the project, hopes that it will serve as a blueprint for other academic hospitals in the country, and mark the beginning of an era of highly specialised medical care for humanity’s most precious people.

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