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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

UFS gives recognition to excellent researchers

2004-11-16

p>The University of the Free State will give recognition to excellent researchers at UFS on Tuesday 16 November 2004. “This recognition function will also serve as the first annual lecture in research excellence,” says Prof Frans Swanepoel, Director of Research Development Division at the UFS.

This is the first occasion of its kind in the UFS. It coincides with the university’s centenary celebrations. The recognition of excellent research shows the UFS’s commitment and innovative focus on research as one of its core functions,” says Prof. Swanepoel.

Recognition will be given in different categories. They are female researchers, black researchers, young researchers, C- and L-Rated researchers, researchers with significant research outputs, B-Rated researchers and distinguished professors in research.

The promotion of equity and development of research capacity of designated groups is one of the objectives of the UFS’s research strategy therefore the university is recognising the research achievements of 21 women and 16 black persons. Amongst these are Prof. Margaret Raftery (English and Classical Languages), Dr Liesl van As (Zoology and Entomology), Prof. Peter Mbati (head of the Qwaqwa campus) and Prof. Charles Ngwena (Constitutional Law and Philosophy of Law).

The UFS is also recognising nine young researchers. They must hold a doctorate and have the potential to establish themselves as researchers within a five-year period based on their performance and productivity as researchers during their doctoral studies and/or early post-doctoral careers. Amongst them are Dr Esta van Heerden (Microbial Biochemical and Food Biotechnology) and Prof. André Jooste (Agricultural Economics).

Fifty-eight established researchers with a sustained recent record of productivity are receiving recognition in the C- and L-rated researchers’ category. Amongst them were Prof. Hennie van Coller (Afrikaans, Dutch, German and French) and Prof. Gert Erasmus (Animal- and Wildlife- and Grassland Sciences).

Prof. Francois Tolmie (New Testament) and Prof. Gina Joubert (Biostatistics) are two of the twelve researchers that are receiving recognition for having excelled in research outputs during recent years.

Nine researchers are acknowledged in the B-category for the international recognition they receive from their peers for the high quality and impact of their recent research outputs. Amongst them were Prof. Johan Grobbelaar (Plant Sciences) and Prof. Hendrik Swart (Physics). Prof. Grobbelaar focused in his research on limnology, algal biotechnology, plant stress and Prof. Swart focused on solid state physics and degradation mechanisms that are responsible for the degradation of field emission and TV displays.

Seven individuals are recognised for their exceptional achievements as researchers. Prof. Frederick Fourie, Rector, but previously in the Department of Economics, is recognised for his research in two policy areas: Political Economics, Government Finance and Fiscal Policy, and Industrial Economics, in particular analysis of the South African industrial structure and competition policy, where his research contributions played a key role in reforming South Africa’s competition policy.

Prof. Lodewyk Kock (Microbial, Biochemical and Food Biotechnology) focuses in his research mainly on pure and oxidised edible oil where yeasts are used as a study model. He obtained national as well as international recognition for this research program.

The UFS is also awarding the S2A3 Bronze Medal to recognise a Master’s degree student who has delivered outstanding research in one of the sciences. Mr Pieter Taljaard and Ms Tania Venter are recognised in this category.

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
16 November 2004

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