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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

International delegates attend SACOMM conference at UFS
2016-10-12

Description: SACOMM conference  Tags: SACOMM conference

From the left: Prof Colin Chasi, Chairperson of the
South African Communications Association,
Dr Dalme Mulder UFS Lecturer; Dr Wilmien Marais,
UFS Lecturer; Prof Johann de Wet, former head of
UFS Department of Communication Science
Prof Tom O’Regan, University of Queensland (Australia)
and Prof Milli Rivera, Head of the UFS Department of
Communication Science during the conference on the
UFS Bloemfontein Campus.
Photo: Rulanzen Martin

Communication from within and below: Social Transformation and Inclusiveness. That was the theme of the 2016 South African Communication Association (SACOMM) conference, hosted at the Bloemfontein Campus of the University of the Free State (UFS) from 3 to 5 October 2016.

“Through this theme, participants were invited to submit papers that examined the role of communication in today’s tumultuous climate,” said Prof Mili Rivera, Head of the Department of Communication Science at the UFS.

A total of 140 delegates from other South African universities, as well as international delegates from Zimbabwe, Nigeria, the United Kingdom, United States, and Australia attended the conference. It was the second time in ten years that the UFS hosted the conference.

Organisation to mentor and support emerging scholars
Various staff members and students from the UFS Department of Communication Science presented papers during the three days.

Annette van Baalen and Dr Dalme Mulder, both lecturers in the department, won the best paper award in the Corporate Communication division. A number of emerging scholars also presented papers. “The organisation is committed to mentoring and supporting emerging scholars in the field of Communication Science,” said Prof Rivera.

Association must be agent of change in curriculum
Delegates discussed the role of the organisation (SACOMM) as an agent of change in terms of decolonising the curriculum. The focus was on training journalists to cover crises in a fair and balanced manner. The book The Art of Persuasive Communication - A Process (4th Edition) by Prof Johann de Wet, former head of the UFS Department of Communication Science, was also launched during the conference.

The next SACOMM conference will take place at Rhodes University in 2017.

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