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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

Sello, Brits and Van Vuuren shine at Varsity athletics
2017-03-10

Description:Varsity athletics   Tags: Varsity athletics  longdesc=

Elmé Smith represented Kovsies in the 100 m
and 200 m at the Varsity athletics event in
Potchefstroom.
Photo: Mario van de Wall/SASPA

Jovan van Vuuren, Maryke Brits, and Tsepang Sello were our big stars at the first Varsity athletics event in Potchefstroom. They all finished first in their items and helped their Kovsies team claim an excellent overall third position among eight universities.

The jumps by Van Vuuren and Brits (both long jump) of 7.73 m and 6.11 m respectively were the longest, while Sello’s time in the 800 m was 2:12.01. Brits not only won the long jump, but was also second in the 100 m hurdles (13.65 s).

UFS outperform the likes of Maties, UJ

The Kovsies eventually bragged with three first, seven second, and two third spots on the podium. They ran, jumped and threw, bagging altogether 12 podium spots to accumulate 14 902 points (with an average of 993). Tuks, with 15 604 (1 040), and Pukke with 15 252 (1 017) was respectively first and second on 3 March 2017. Our team outperformed universities like the Maties and the University of Johannesburg.

Rynardt, Kesa claim second place

Big names such as Rynardt van Rensburg (800 m, second in 1:50.49) and Kesa Molotsane (1 500 m, second in 04:29.31) also scored podium spots. The second Varsity athletics meeting will take place in Pretoria on 31 March 2017.

Team results in Potch:

1. Tuks 15 604 (Top 15’s average: 1 040)
2. Puk 15 252 (1 017)
3. Kovsies 14 902 (993)
4. UJ 14857 (990)
5. Maties 14317 (954)
6. UWC 14068 (938)
7. Madibaz 13721 (915)
8. TUT 13463 (898)

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