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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 to award honorary doctorate to Maria Ramos

2004-12-08

The Council of the University of the Free State (UFS) recently approved the awarding of an honorary doctorate to Ms Maria Ramos, Group Chief Executive of Transnet in April 2005. A total of five honorary doctorandi will be honored.

The other doctorandi are Proff Jan Groenewald (D Sc (hc)), Jaap Durand (D Phil (hc)), Sampie Terreblanche (C Dom (hc)) and Anthon Heyns (MD (hc)).

Me Ramos will receive an honorary doctorate in Economics (P hD (Economics) (hc)) for the large contribution she made to the establishment of a prudent fiscal and macro-economic policy in South Africa and hence, to the restoration of the financial credibility of the country in the eyes of domestic and foreign investors. Ms Ramos was the Director General of the National Treasury from 1996-2003.

She obtained the MSc-degree in Economics in 1992 from the University of London and was awarded a British Council Scholarship (Helen Suzman award) in the same year and in 1991. During the early nineties she was among others project leader of the ANC’s Macro-economic Research Group and also a member of the team that negotiated chapters on finance in the interim Constitution of South Africa. She was a research associate at the Centre for the Study of the South African Economy and International Finance at the London School of Economics and also lectured at the Universities of South Africa and the Witwatersrand.

“It is a great privilege for us to honor Ms Ramos and the other doctorandi in their different fields of expertise. This once again serves as an example of the UFS’s policy to give recognition to people who excel and make a difference,” said Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS.

Prof Jan Groenewald will receive an honorary doctorate for his life-long commitment to the establishment and development of Agricultural Economics as a subject field in South Africa and in Africa and his various contributions to the UFS. During his career, Prof Groenewald received various awards among others in 1998 when he received the Stals Prize for Economics from the South African Academy for Science and Art and in 1990 when he received an honorary medal from the South African Society for Agricultural Economics.

Prof Jaap Durand will receive an honorary doctorate in Philosophy for his pioneering work on various fields in the South African society. He obtained his Masters degree in Philosophy from the UFS and contributed to almost 60 articles and collections. Prof Durand has a colourful career as academic manager: from professor in Systematic Theology and dean of the Faculty of Theology at the University of the Western Cape to Deputy Vice-Chancellor of the same university. He was the ombudsman of the University of Stellenbosch from 2002-2003.

Prof Sampie Terreblanche will receive an honorary doctorate in Economics for the important role he played, and is still playing, to keep the debate about and the need for socio-economic and socio-political reform in South Africa going. Prof Terreblanche started his career as a lecturer at the UFS. In 1992 the Stals Prize for Economics was awarded to him by the South African Academy for Science and Art. Prof Terreblanche was also a founding member of ASSET, an organisation addressing the problems of poverty, inequality and social injustice in South Africa.

Prof Anthon Heyns, Chief Executive Officer of the South African National Blood Service, will receive an honorary doctorate in Medicine. Prof Heyns is a well-known international researcher in Hematology and recently received a Centenary Medal from the UFS for his strong role and national prominence as expert and leading figure in establishing and developing Hematology at the UFS. He was the first head of the UFS’s Department of Hematology and is also co-editor of the only Afrikaans hand book of Hematology. He serves among others as a council member and member of the executive management of the South African Medical Research Council. On the international front he serves on at least five committees of the World Health Organisation based in Geneve, Switzerland. He has two honorary appointments as professor respectively at the UFS and University of the Witwatersrand.

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

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