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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 policies want to help all students

2005-03-09

The death of Hannes van Rensburg, a first-year student from the JBM Hertzog residence, this past weekend, placed various aspects of student life in the spotlight. Dr Natie Luyt, Dean: Student Affairs at the University of the Free State (UFS), and the Student Representative Council (SRC) of the UFS explain which policies are in place to counter these practices.

At all tertiary institutions there are rules and policies to guide students and provide direction for certain behaviour and practices. The same applies to the University of the Free State (UFS).

“At the beginning of the year the UFS provides every residence committee with a manual to establish a framework for meaningful and orderly relations within and among residences on the campus,” said Dr Natie Luyt.

However, it is one thing to set rules, but it is an impossible task to enforce all aspects thereof. Policies currently in place include an alcohol policy, a policy on the induction of first years and a policy on banned practices in residence orientation.

“The alcohol policy was compiled in cooperation with students and their input was constantly asked,” said Dr Luyt. We also liaise on a continuous basis with residences and senior students to encourage the responsible use of alcohol, especially around activities like intervarsities and Rag.

In the policy, recognition is given to the right and voluntary and informed choice of every individual to use alcohol on the UFS campus in a responsible way.

Guidelines for the use of alcohol on campus include among others the following:

Only authorised points of sale will be permitted on campus. In this case it is the various league halls in most of the male residences on campus.

Alcohol will only be made available during fixed times and is not permitted in residence rooms.

All alcohol-related functions are regulated and an application for a temporary alcohol license must be obtained from the Dean: Student Affairs.

The UFS obtained a liquor license in March 2004 which must be administered by senior leagues in various residences on campus. Normal liquor license conditions and the county’s liquor laws apply. Liquor can only be sold to members of the senior league (or special guests) and also to persons over the age of 18 years. Liquor may not be used in public (outside the senior league) or on campus.

The senior leagues may only be open three nights per week and within prescribed times. No liquor could be used in any other place than the senior league halls. Senior leagues could buy liquor from club monies generated by themselves.

The right of senior leagues to serve liquor was suspended by the Rector and Vice-Chancellor the UFS, Prof Frederick Fourie, on Monday 7 March 2005 – pending an investigation of the recent events on campus.

The policy on banned practices include among others that no swearing and shouting at first-years may take place, no first-year student may be targeted individually, no senior may enter the room of a first-year student without an invitation or permission from that first-year student and no senior under the influence of alcohol may have contact with first-year students.

The induction of first-year students takes place by means of three functions, namely an information function (the introduction to the various facets and possibilities of the university system), an induction function (the first-year student becomes involved in various campus and residence activities) and a development function (the first-year student is motivated to take charge of his development potential).

No first-year induction activity may commence before the residence committee’s contracting with the senior students is not completed. This meeting is attended by the residence head and all senior students. The induction policy, residence induction policy of first-year students and first-year rules are discussed.

The senior students sign an attendance list to show that he/she was informed about the policies. A senior who does not sign, may not be involved with any induction session with first-year students.

No physical contact is allowed during the conclusion of the first-year students’ official induction period. The induction of first-year students as full members of the residence is a prestige event, presented by the residence committee. No physical or degrading activities may take place.

The Dean: Student Affairs also has a daily meeting with the primarii of all the residences during the induction period. This helps to monitor the situation and counter any problem behaviour or tendencies.

“Enforced behaviour – where a senior student forces a first-year student to do something against his/her own free wil – is not allowed. Where there is any sign of this, it is met wortel en tak uitgeroei,” said Dr Luyt.

“In any group of people – whether it is a group of students or people at a workplace – there will always be those who will break the rules or those who would like to see how far they could push it.

The SRC, the UFS management and myself are and will stay committed to make each student’s life on this campus a school of learning and an experience which would be remembered for ever,” said Dr Luyt.

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