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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

Judgement in the Supreme Court of Appeal about UFS Language Policy
2016-11-17

The University of the Free State (UFS) is pleased with the judgment handed down in the Supreme Court of Appeal this morning, relating to the university’s appeal against the implementation order granted on 12 September 2016 by the Full Bench of the Free State High Court. The implementation order barred the UFS from implementing its new Language Policy in 2017, pending the outcome of the appeal of the review application.

The Supreme Court of Appeal held that the application brought by AfriForum and Solidarity failed on a legal and factual level, and was misconceived. The court accordingly upheld the appeal by the UFS against the implementation order, setting aside the order, and directing that AfriForum and Solidarity pay the legal costs of the UFS in respect of both the High Court and Supreme Court of Appeal proceedings pertaining to implementation.

The effect of today’s judgment is that the UFS may proceed to implement the new Language Policy in its pilot programme next year, pending the appeal of the review application which will only be heard early in 2017.

In March 2016, the Senate and then Council adopted with overwhelming majority a new Language Policy that strives to achieve multilingualism. The new policy entails English as primary medium of instruction, but with the introduction of a tutorial system in Afrikaans and progressively in Sesotho to support students’ learning in their first and second year of study.

The policy will be piloted in 2017 with first-year students in three faculties: Law, Health Sciences, and the Humanities. In these faculties, the majority of students indicated their preference to be taught in English. The Afrikaans-English policy will be maintained in the rest of the faculties in 2017 and phased out according to an implementation plan as from 2018.

Current registered students will be able to complete their studies in the language they selected upon registration.

 

Related articles:
Implications of new Language Policy for first-year students in 2017: 17 October 2016
UFS to proceed with appealing to Supreme Court of Appeal regarding new Language Policy: 29 September 2016
UFS to lodge application to appeal judgment about new Language Policy: 22 July 2016
High Court ruling about new UFS Language Policy: 21 July 2016
UFS Council approves a new Language Policy: 11 March 2016

 
Released by:
Lacea Loader (Director: Communication and Brand Management)
Telephone: +27 51 401 2584 | +27 83 645 2454
Email: news@ufs.ac.za | loaderl@ufs.ac.za
Fax: +27 51 444 6393

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