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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 announces the closure of Reitz Residence and the establishment of an institute for diversity
2008-05-27

Statement by Prof. Teuns Verschoor, Acting Rector of the UFS

The Executive Management of the University of the Free State (UFS) today announced a unanimous decision to close the Reitz Residence, effective at the end of the current university semester, and establish an institute for diversity on the same premises.

Four students from the Reitz Residence were responsible for making the now infamous Reitz video, depicting four female colleagues from the University and a worker of Prestige Cleaning Services who were lured into participating in a mock initiation ceremony during which they were humiliated and demeaned.

University management repeated its strong condemnation of the video, made in apparent protest against the University’s integration policy implemented at 21 residences accommodating some 3 400 students on the Main Campus in Bloemfontein.

The Reitz video reopened racial wounds, and is deeply regretted. It was an isolated manifestation of resistance to the impact of ongoing transformation initiatives at the University. The video and other acts of public violence and vandalism on the campus have undermined the efforts of the University to foster diversity in student and staff life and create an inclusive institutional culture on the campus.

The actions of a relatively small group of students also inflicted severe damage on the University’s reputation and standing in the local and international academic community. The UFS management had therefore decided that closure of the Reitz Residence was an unavoidable strategic imperative and an important gesture of reconciliation towards all South Africans who had been offended.

The University has apologised unreservedly for the video. Two of the students who were still residents in Reitz were barred from the campus and subsequently terminated their studies at the UFS, while the other two students had already completed their studies last year.

In an endeavour to make restitution and to offer a lasting contribution to transformation, both at the UFS and in the country as a whole, the UFS has committed itself to establishing an institute for diversity on the premises of the former Reitz Residence.

Reitz will therefore be closed as a residence from 20 June 2008. The UFS has appointed a fully representative special committee to assist current Reitz residents in finding alternative accommodation.

The Institute for Diversity is envisaged as a centre of academic excellence for studying transformation and diversity in society – a living laboratory for combating discrimination and enabling and enhancing reconciliation in societies grappling with the issues of racism, sexism and xenophobia.

The declaration of Higher Education South Africa (HESA) published on 28 March 2008 highlighted that racism, intolerance and discrimination are societal phenomena present on many campuses. However, these issues are not restricted to institutions of higher learning, and are symptomatic of a broader social malaise.

In responding to the challenge faced by the University regarding its own transformation issues, as well as those faced by the country, the UFS will study the anti-transformational impulses on the campus as a microcosm of much broader socio-political challenges. The University will transform itself over time into a beacon of hope, combating racism and other forms of discrimination in South Africa and elsewhere in the world.

The Institute for Diversity will add impetus to the University’s existing transformation programme. Six strategic clusters, including a transformation cluster, were created in 2007 as part of the University’s long-term strategic planning.

The University has already provided seed capital of R1 million to design and establish the Institute. Planning will take place during 2008/09, with the Institute being formally opened in the 2010 academic year. An international fund-raising drive to raise an initial target of R50 million will be launched shortly.

Note to editors: The Reitz video was apparently made late last year, but only entered the public domain on 26 February 2008.

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  
27 May 2008


UFS e phatlalatsa ho kwalwa ha hostele ya Reitz le ho thehwa ha Institute for Diversity

Phatlalatso ka Prof. Teuns Verschoor, Morektoro ya tshwereng mokobobo wa UFS

Kajeno bolaodi ba Yunivesithi ya Freistata (UFS) bo phatlaladitse qeto e ananetsweng ke bohle ya ho kwalwa ha hostele ya Reitz mafelong a sehla sena sa pele sa dithuto (semester), le ho thehwa ha Institute for Diversity meahong eo ya Reitz.

Baithuti ba bane ba hostele ya Reitz ba ile ba eba le seabo kgatisong ya video e mpe moo basebetsi ba bane ba bomme ba yunivesithi le mosebetsi wa khamphane ya Prestige Cleaning Services ba ileng ba hohelwa ho ba le seabo mme ba tlontlollwa le ho nyenyefatswa hampe.

Bolaodi ba yunivesithi bo boetse ba nyatsa ka mantswe a bohale video eo e ileng ya hatiswa ka maikemisetso a ho ipelaetsa kgahlanong le leano la diphethoho dihosteleng tse 21 tsa yunivesithi Bloemfontein tseo e leng bodulo ho bathuti ba ka bang 3400.

Morektoro ya tshwereng mokobobo wa UFS, Prof. Teuns Verschoor, o boletse hore video eo ya Reitz e boetse e butse maqeba a semorabe mme e seollwa ka matla. O re e ne e le ketsahalo e ikgethileng ya boipelaetso kgahlanong le diteko tse tswelang pele tsa ho tlisa diphethoho yunivesithing. O re video eo le diketsahalo tse ding tsa merusu le tshenyo ya thepa khamphaseng di setisitse diteko tsa yunivesithi tsa ho tlisa poelano hara baithuti le basebetsi, le ho theha moetlo o akaretsang ka hare ho yunivesithi.

O tswetse pele ka hore diketso tseo tsa sehlotshwana sa baithuti di boetse tsa senya yunivesithi serithi le lebitso mona hae le dinaheng tse ding. Kahoo bolaodi ba UFS bo nkile qeto yah ore ho kwalwa ha hostele ya Reitz ke ntho o kekeng ya qojwa mme e boetse ke mohato wa bohlokwa wa poelano ho ma-Afrika Borwa ohle a anngweng ke taba ena.

Yunivesithi e kopile tshwarelo mabapi le video ena. Ba babedi ba baithuti ba amehang kgatisong ya video eo, ba neng ba ntse ba dula hosteleng ya Reitz, ba ile ba thibelwa ho kena khamphaseng mme yaba ba tlohela dithuto tsa bona, ha ba bang ba babedi bona ba ne ba se ba phethetse dithuto tsa bona selemong se fetileng.

Prof. Verschoor o boletse hore ho leka ho kgutlisetsa maemo setlwaeding le ho tshehetsa leano la diphethoho UFS le naheng ka bophara, UFS e ikanne ho theha Institute for Diversity hona meahong eo ya Reitz.

Kahoo hostele ya Reitz e tla kwalwa ho tloha ka la 20 Phupjane 2008. UFS e thontse komiti e ikgethang e akaretsang bohle ho thusa baithuti ba dulang hosteleng ena hajwale ho fumana bodulo bo bong.

Institute for Diversity e tla ba setsha se kgabane sa dithuto tsa diphethoho le poelano setjhabeng – setsha se tla lwantshana le kgethollo mme se kgothalletse le ho matlafatsa poelano hara batho ba tobaneng le mathata a kgethollo ya mmala, ya bong le lehloyo la melata.

Tokomane ya Higher Education South Africa (HESA) e phatlaladitsweng ka la 28 Hlakubele 2008, e pepesa dintlha tse amanang le kgethollo ya mmala, tlhokeho ya mamellano le kgethollo ka kakaretso e le dintho tse teng dikhamphaseng tse ngata. Dintlha tsena ha di teng feela ditsheng tsa thuto e phahameng, empa le setjhabeng ka kakaretso.

Prof. Vershoor o boletse hore UFS e tla lekola dikgato tse kgahlanong le diphethoho ka hare ho khamphase jwaloka karolo ya diphepetso tse nammeng hara setjhaba ka kakaretso. O re yunivesithi e tla fetoha ha nako e ntse e tsamaya ho ba mohlala o motle wa tshepo, twantsho ya kgethollo ya mmala le mekgwa e meng ya kgethollo Afrika Borwa le lefatsheng ka bophara.

Institute for Diversity e tla thusa ho matlafatsa lenaneo la jwale la diphethoho la yunivesithi. Ho thehilwe di Strategic Clusters tse tsheletseng selemong se fetileng, tse kenyeletsang Transformation Cluster, jwaloka karolo ya merero ya UFS.

Yunivesithi e se e nyehelane ka tjhelete e kana ka diranta tse milione ho rala le ho theha institute ena. Ho rerwa ha yona ho tla etswa ka 2008/09, mme institute ena e tla bulwa semmuso selemong sa dithuto sa 2010. Haufinyana ho tla thakgolwa letsholo la matjhaba la ho bokeletsa tjhelete e kana ka diranta tse dimilione tse mashome a mahlano.


Tlhokomediso ho bahlophisi ba ditaba: Video ya Reitza e hatisitswe selemong se fetileng mme ya hlahella pepeneng ka la 26 Hlakola 2008.

Phatlalatso ya boraditaba
E entswe ke: Lacea Loader
Motlatsa molaodi: Dikgokahano
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za  
27 Motsheanong 2008








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