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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

Multilingualism and exclusion to be discussed
2007-11-27

 
 Some of the UFS staff who will be attending the colloquium on multilinguisim and exclusion in Antwerp, Belgium are, from the left, front: Prof. Theo du Plessis and Ms Susan Lombaard; back: Prof. Johan Lubbe and Mr Roelof Geyser. All are from the Unit for Language Management.
 
Multilingualism and exclusion to be discussed

Five members of the University of the Free State’s (UFS) Unit for Language Management will be taking part in an international colloquium at the University of Antwerp in Belgium on the theme: “Multilingualism and exclusion – perspectives on language and society” this week.

“During this week’s colloquium, approximately twenty South African and Flemish colleagues will reflect on the complex relationships within multilingual communities, where a variety of factors can contribute to the inclusion or exclusion of individuals or communities. Some of the papers will focus on policy measures (“from above”) with regard to the relative position of languages in a particular state, and the impact of these policy measures on the lives of language users. Others will investigate perceptions and “appropriation” (“from below”) by the same language user. In view of the multiple points of departure, the colloquium should contribute towards a better understanding of the dynamics within multilingual communities,” said Prof. Theo du Plessis, Director of the Unit for Language Management at the UFS.

“To give expression to the theme of multilingualism and exclusion, lectures will be presented in three languages, namely Afrikaans, English and Dutch. Several postgraduate students (from South Africa and Flanders) will also have an opportunity to report on investigations they are conducting within the framework of their master’s degree and doctoral studies,” said Prof. Du Plessis.

The colloquium is a follow-up of an international symposium held at the UFS during April 2006 in which a considerable number of outstanding scholars from various countries participated.

According to Prof. Du Plessis, the proceedings of the symposium held last year will be released in book form as part of the unit’s publication series “Studies in Language Policy in South Africa”, published by Van Schaik Publishers.

This sixth issue in the series entitled: “Multilingualism and Exclusion. Policy, Practice, Prospects” will be released tonight (26 November 2007) by the Permanent Deputy of the Province of Antwerp at a prestigious event during the colloquium. The issue was edited by Prof. Du Plessis, Prof. Pol Cuvelier (University of Antwerp), Dr Michael Meeuwis (University of Ghent) and Ms Lut Teck (Institute for Higher Education and the Arts in Brussels).

The UFS will be represented by Prof. Du Plessis, Prof. Johan Lubbe, Ms Susan Lombaard and Mr Roelof Geyser of the Unit for Language Management, as well as Prof. Jackie Naudé of the Department of Afro-Asiatic Studies, Sign Language and Language Practice. Representatives from the universities of Pretoria, Johannesburg, North West and the Monash University in Johannesburg will also be participating in the colloquium.

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
26 November 2007

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