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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

UFS researcher fills void in South African policing history
2017-01-02

Description: Dr Cornelis Muller Tags: Dr Cornelis Muller 

Currently a Postdoctoral fellow in the International
Studies Group, Dr Cornelis Muller’s PhD thesis explores
late nineteenth century South African policing on the
Witwatersrand.
Photo: Rulanzen Martin

“I used policing on the Witwatersrand as a lens through which to examine aspects relating to state formation within the South African Republic.”

This is how Dr Cornelis Muller, a postdoctoral fellow in the International Studies Group at the University of the Free State (UFS), described his PhD thesis called Policing the Witwatersrand: A history of the South African Republic Police, 1886-1899. The thesis fills an empirical void in the history of settler colonial policing in South Africa.

His research was also featured in the South African Historical Journal, which is published by Routledge. Dr Muller received his PhD from the UFS during the 2016 Winter Graduation ceremonies. He received a scholarship from the university to conduct his three-year research.

Relationship between police and state examined

The study presents itself as an institutional biography in which the relationship between the South African Republic Police (known as the Zarps), the state, and broader society are examined. The period under investigation was a time when political, economic, and social complexities on the Witwatersrand created tension between South Africa and Great Britain.

An important theme throughout the thesis is the relationship between the police, the mining industry, and the so-called Uitlander community. Crime was also an important contributing factor to the complex relationship that developed between the Zarps and the policed in Johannesburg’s formative years.

“Johannesburg was a town under siege by a variety of crimes which ranged from vagrancy, drunkenness, gambling, and prostitution to robbery, murder, and assault,” said Dr Muller.

Archives in South Africa and Great Britain consulted
“My thesis follows a chronological approach in which various themes accounting for the development of the police on the Witwatersrand are highlighted.” Framed within the bureaucratic and administrative functioning of the Zarps, he examined aspects relating to crime, crisis, and conflict between the police and society. The thesis also details the relationship between the police and Johannesburg’s black community.

As with any historical research, it comprised internal and external source criticism and content analyses of a wide range of archival records.

Dr Muller had the opportunity to visit several archives and libraries in South Africa and Great Britain. “Some of the more important archival collections were assessed at the National Archives in Pretoria.” These included the Archive of the State Attorney and the Archive of the Magisterial District of Johannesburg.

“My study thus adds to scholarship that seeks to provide a more nuanced understanding of the South African Republic’s administrative functioning and internal politics in the late nineteenth century,” concluded Dr Muller.

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