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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

Multidisciplinary conference on TB control

2003-09-22

Theme: Tuberculosis control: a multidisciplinary approach to research, policy and practice Venue: CR Swart Auditorium, University of the Free State Campus, Bloemfontein Date: 11 and 12 November 2003 Time: 11 November, 19:00-20:30 AND 12 November 08:30-17:00

Tuesday, 11 November - 19:00-20:30 (registration from 18:30) and Wednesday, 12 November - 08:30-17:00 (registration from 07:30)

The Honourable MEC for Health in the Free State will officially open the Conference on the evening of 11 November, while Prof Frederick Fourie (Vice-Chancellor and Rector of the University of the Free State) will attend to the welcoming. In addition, Prof Françoise Portaels (Institute of Tropical Medicine, Belgium) and Dr Refiloe Matji (National Department of Health, South Africa) will respectively present a global and a South African perspective on TB. The majority of the presentations will follow on 12 November.

Main thrust of Conference

The main thrust of the Conference is to disseminate both research results and policy/managerial matters relevant to TB and TB control, and to facilitate discourse among researchers and health policy makers/managers/practitioners in the field of TB control. Presenters of papers, as well as delegates are, therefore, drawn from both academic/research institutions, and from health service sectors involved in TB control in all provinces and in neighbouring countries.

Topics of presentations

A variety of topics will be dealt with during presentations, such as: New challenges in the global control of MDR-TB New strategies and policies on MDR-TB in South Africa A South African perspective on TB control A provincial perspective on implementing the national TB control policy

The role of the public district hospital in TB control Tuberculosis control through DOTS Case detection strategies

TB in children Hospital to clinic: is this the missing link? Patient compliance with DOT for TB Challenges for effective health communications in a multicultural context

The economics of TB Frequency of multiple infections with M. tuberculosis in pulmonary TB patients HIV/AIDS and TB, etc.

Speakers

Among the speakers will be Dr Victor Litlhakanyane (Head of Health: Free State); Prof Françoise Portaels and Dr Leen Rigouts (Institute of Tropical Medicine, Belgium); Dr Reliloe Matji (Director: NTBC Programme); Ntsiki Jolingana (Director: HIV, AIDS, TB and Communicable Diseases, Free State) and Annatjie Peters (Free State TB Coordinator); Dr Karin Weyer (Medical Research Council); Profs Herman Meulemans, Diana De Graeve, Luc Pauwels and Christiane Timmerman (University of Anwerp, Belgium); Dr Lara Fairall (UCT Lung Institute, University of Cape Town); Prof Frikkie Booysen (Department of Economics, University of the Free State); Christo Heunis, Ega Janse van Rensburg-Bonthuyzen, Zacheus Matebesi and Kobus Meyer (CHSR&D); Dr Mary Ednington (School of Public Health, Wits); Dr Carmen Báez and Sabine Verkuijl (ISDS); Anneke Van der Spoel-Van Dijk (Medical Microbiology, University of the Free State).

Costs

There will be no registration fees. However, delegates are expected to arrange their own transport and accommodation, or arrange for sponsorships themselves.

Contact details in case of inquiries and confirmation:

Postal Address: The Director, CHSR&D, PO Box 339, University of the Free State, Bloemfontein, 9300 Fax: 051 448 0370 Tel: 051 401 2181 OR 051 401 3256 E-mail: vrensh@mail.ufs.ac.za (Dingie van Rensburg) OR neljc@mail.ufs.ac.za (Ohna Nel)

PLEASE, CONFIRM YOUR ATTENDANCE AS SOON AS POSSIBLE, BUT AT THE LATEST BEFORE 25 OCTOBER 2003 ? BY TELEPHONE, FAX OR E-MAIL.

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