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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 honours more than 250 former students with national colours in sport
2007-11-01

The Kovsie Alumni Trust of the University of the Free State (UFS) will be honouring more than 250 former students who obtained national colours in various sporting codes over the years during a gala dinner on Saturday, 3 November 2007 on the Main Campus in Bloemfontein.

This will be the first time in the history of the UFS that so many sportsmen and women who studied at the UFS will be honoured for their achievements at the same time.

During Saturday’s dinner 100 of the 250 former students will be present to receive their special awards. This includes among others Springbok rugby players such as the brothers Eben and Joggie Jansen, Nelie Smit, Edrich Krantz, Theuns Stofberg, Jannie du Plessis, Meyer Bosman and Hendro Scholtz. Some of the sport stars in other sporting codes who will also be present include Hennie Pretorius for athletics; Stephen Brink and Heinrich Brüssow for Sevens Rugby; Frans Botma for under water hockey; Hannette Bruwer and Annarie Store for netball; Annette Bekker for hockey and Corrie van Zyl and Gerhardus Liebenberg for cricket.

Special mention will also be given to the first sportsman and woman at the UFS, namely Joggie Jansen and Annette Bekker.

During the ceremony the tenth year of the Kovsie Alumni Trust’s existence will also be celebrated. The Trust, who is the main sponsor of the Matriculant of the Year Award, offers financial aid to many underprivileged and disabled students to help them complete their studies and supplies bursaries to prospective students.

The awards will be handed over by Mr Harold Verster, President of the Free State Rugby Union, and Danie Niehaus will be the guest artist.

Media Release
Issued by: Lacea Loader
Assistant Director: Media Liaison
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za  
31 October 2007
 

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