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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

Suspect in theft of computer equipment arrested
2007-11-16

A suspect, who may be involved in the recent theft of computer equipment from buildings on the Bloemfontein campus of the University of the Free State (UFS), has been arrested.

On 13 November 2007 an alarm in the Agriculture Building on the Main Campus of the UFS was activated. Protection Services reacted to the alarm and the person, who tried to run away, was pursued and later arrested.

The suspect was handed to the South African Police Service (SAPS). Currently SAPS is conducting an intensive investigation in co-operation with Protection Services at the UFS.

“The extent of the investigation goes beyond this single case for which the captive was arrested,” said Mr Willie Frankim, Manager: Protection Services at the UFS.

Meanwhile, the UFS’s Safety Committee has decided on a number of measures to heighten security on campus, including:

  • Patrols between buildings are to be intensified.
  • Vehicles leaving the campus will be searched. This is being done on an ad hoc basis at all the gates.

According to Mr Frankim the university is also looking at extending the alarm system and measures to secure buildings on campus.
He said: “The above will not happen overnight. We request all staff members and students to give their co-operation and to be more security conscious by:

  • Giving their co-operation at the gates when their vehicle is searched,
  • To ensure that the windows of your office and building are closed,
  • To lock office doors when you leave the office, even if it is for a short while,
  • Not to leave your office unattended when there are strangers,
  • to report suspicious persons as soon as possible to Protection Services,
  • To ensure that valuable articles (laptops and cell phones) are locked away,
  • To ensure the safekeeping of keys (not in drawers or on top of a door frame), and
  • Determine who has access to a building and question anybody unknown.”

Contact Protection Services at any of the following numbers:

Duty room: O51-4012634 / 051-4012911

Mr Aggrey Litseho (investigation officer): 051-4013225 / 0836347919 /
Short cell phone x6060

Mr Willie Frankim (manager): 051 401 3438 / 0828831760/
Short cell phone x6000

“We can only combat crime if everybody is aware of their environment, everybody adheres to the basic rules and co-operates with Protection Services,” said Mr Frankim.

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  
15 November 2007
 

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