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Prof Bradley Smith addresses matrimonial property and trust law complexities

29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett

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

Significant support for Student Safety March in Bloemfontein

2017-07-28

SK Luwaca, UFS SRC President; Thapelo Ngozo,
CUT SRC President, and Prof Francis Petersen,
UFS Rector and Vice-Chancellor, during the handover of the
memorandum at the Bram Fischer Building.
Photo: Johan Roux

The University of the Free State (UFS) and the Central University of Technology (CUT) united in a Student Safety Awareness March, which took place on Thursday 27 July 2017 from the UFS Bloemfontein Campus to the Bram Fischer Building.

The peaceful march had a turnout of approximately 1 500 students and staff from both institutions, led by the Student Representative Councils (SRC) from UFS and CUT. The purpose of the march was to hand over a memorandum to the Provincial Commissioner, Lieutenant General Lebeoana Tsumane, who acknowledged it on behalf of Mr Sam Mashinini, MEC for Police, Roads, and Transport in the Free State. The memorandum includes students’ demands regarding safety around student residential areas and general student safety in the city.

Prof Francis Petersen, UFS Rector and Vice-Chancellor, who – together with other members of the senior leadership group – was part of the march, says he is very impressed with the outcome of the march and the participation rate of both staff and students, as well as the joint efforts between the UFS and CUT to arrange the march.

Prof Petersen says, “There are public spaces where our students feel unsafe, and we would like the city and the province to seriously look into that and work with us to try and see if we could make those spaces safe.

A week filled with safety activities
The march was part of the Safety Week taking place from 24 to 28 July 2017, during which the UFS SRC, together with other stakeholders, took part in several activities on and off the Bloemfontein Campus. These included door-to-door visits to student homes and residences on and around campus, awareness campaigns at all the gates of the campus, and a Safety Dialogue held on 26 July 2017 at the Equitas Auditorium on campus.

The aim of the Safety Week was to focus on informing, educating, and encouraging students as well as the Mangaung community at large, to work together in creating a safe environment for students. The week started with the roll-out of an awareness campaign titled Reach Out, which was set to bring students and the community of Mangaung together to help decrease the number of violent crimes faced by students off campus. The communication plan included safety messages, using outdoor billboards, posters on lampposts around the residential student areas, local community radio stations, campus media, and the university’s social media platforms.

UFS and CUT students and staff, occupying the streets of
Bloemfontein during the Safety March.
Photo: Johan Roux

Accreditation of off-campus accommodation service providers
Over and above the Safety Week and safety awareness march, the university has initiated a number of other projects as part of its student safety strategy. This includes a process to accredit off-campus accommodation service providers in Bloemfontein who provide accommodation to students. The decision to accredit these service providers comes from a concern by the university management about the safety of students and the conditions under which some of our students live in off-campus accommodation. The accreditation process entails a list of primary requirements, drafted with the cognisance of the Mangaung Metropolitan Municipality and the SRC, in terms of off-campus accommodation to which private providers must adhere in order to be accredited by the university. The requirements are in line with the Policy on the Minimum Norms and Standards for Student Housing at Public Universities (Government Gazette 39238, dated 29 September 2015).

Transport to and from campus
Another project to be initiated on 31 July 2017 is a transport pilot project with Interstate Bus Lines to assist students with transport and access to the Bloemfontein Campus. The route includes various stops in the areas surrounding the campus, as well as a hop-on/hop-off route within the campus.

Released by:
Lacea Loader (Director: Communication and Brand Management)
Telephone: +27 51 401 2584 | +27 83 645 2454
Email: news@ufs.ac.za | loaderl@ufs.ac.za
Fax: +27 51 444 6393

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