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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

Prof Frederick Fourie to step down as UFS rector

2008-09-08

“It is with sadness that I hereby announce my intention to step down as rector and vice-chancellor of the University of the Free State (UFS) in the 4th quarter of this year.

Obviously this decision has not been taken lightly. After careful consideration I am, however, convinced that this is as far as I can take the UFS as vice-chancellor and rector. This flows primarily from the exhausting times that I have experienced during the past nine years, first as vice-rector (since 1999) and then as rector (since 2003), in managing and implementing several complex strategic projects.

The challenges and complexities of continuous change management at a higher education institution, and specifically the demands of further dynamic development and transformation at the UFS, demand enormous amounts of emotional energy and drive. For me the stress due to, especially, the political divisions and tensions in the UFS Council and the broader university community during the past year has been extremely draining. The broader institution and its people also show signs of trauma.

I think it is time for new and fresh leadership, especially in the light of the transformation challenges of the UFS.

I have thus decided to step down in the interest of transformation and the further dynamic development of the UFS.

Having been on sabbatical leave since May, I will not return to take up my post. I will remain on leave until my official date of retirement from office. (The exact date must still be determined.)

I am grateful for the opportunity to have been at the helm of the UFS and to help the institution cross several bridges. During the past nine years I have been privileged to lead large strategic projects together with many dedicated and talented UFS colleagues. It has been a wonderful experience of thinking and working together in order to elevate the functioning of the University to new levels in several key areas.

One of the most important projects was the financial turnaround strategy of 2000-2005, which took the UFS from a financial crisis to a situation where currently it annually has almost R100 million of discretionary funding available to spend on strategic projects, and where staff remuneration and promotion opportunities have increased dramatically since 2000. In this period the UFS has also grown from approximately 10 000 students to more than 27 000 in 2008.

A second was the strategy to invest strongly in the academic core and notably research, research capacity and research apparatus. Since 2003 research outputs have increased by approximately 50% - a significant accomplishment of our researchers and faculties. In conjunction with this, the launch of the six strategic academic clusters (focus areas) should create the basis for the continued growth in the national and international stature of the UFS in future. The development of the national leadership role of the UFS with regard to community service also was a special and successful project.

A third large strategic project was the progress with regard to diversity, the balanced multilingualism policy in the academe as well as the administration, the employment equity plan, the UFS transformation plan and especially the institutional charter – which could lay the foundation for a university where one and all can experience a true sense of belonging amidst diversity. These have been important steps that we can feel proud of (although much work obviously remains with regard to non-racialism and also non-sexism).

As far as residences are concerned, it was historically significant that this time, in contrast to 1997/8, the UFS succeeded in crossing the bridge of diversity and integration in residences – with due regard to the difficulties we faced. Hopefully this will considerably ease the task of my successor and her/his management team in managing diversity and in pursuing best practice transformation.

A fourth large project was the large-scale upgrading and development of infrastructure, academic buildings and facilities as well as support service facilities, student facilities and pedestrian walkways. The objective was a campus of the highest quality and aesthetics to effect a lasting improvement in their work- and living environment for staff and students. Indeed, the UFS Main Campus today is seen as an example of sensitive and high quality campus planning.

Other initiatives which haven’t borne fruit yet are, for example, those with regard to entrepreneurial activities, sport development and sport business development, and the possible establishment of an engineering programme or faculty at the UFS.

On the whole the most important thing for me has been the progress in establishing a deep commitment to quality and equity/fairness and in boosting the national and international profile of the UFS as a high quality progressive university. Of course, justice, equity and quality intrinsically are challenges which require daily dedication to make it an ingrained habit.

I wish to thank all those people with whom I could work during the past years in tackling large and complex challenges with mutual loyalty, shared wisdom and effort – from the Financial Turnaround Team to the Exco, the Executive Management, the Faculties, the Senate, support service divisions, the University Council and several committees and task teams”.

Frederick C.v.N. Fourie
Rector and Vice-Chancellor
University of the Free State

Prof Frederick Fourie has been with the UFS since 1976. After obtaining a PhD in Economics from Harvard he was appointed professor at the age of 29 in 1982, head of the Department of Economics in 1992, Distinguished Professor in 1998, Dean of the Faculty of Economic and Management Sciences in 1997, Vice-rector: Academic in 1999 and vice-chancellor in 2003.

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
8 September 2008

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