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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 honour past and present Cabinet ministers

2010-04-19

The University of the Free State (UFS) is going to confer honorary doctoral degrees on former Minister of Arts, Culture, Science and Technology, Dr Ben Ngubane, and the current Minister of Finance, Mr Pravin Gordhan, during the university’s autumn graduation ceremony next month.

They will receive their honorary doctorates on 18 and 19 May respectively.

“It is an honour for the UFS to confer these honorary doctorates on people like these who have made, and continue to make outstanding contributions towards the wellbeing of this beautiful country. Being associated with people of this stature signifies the direction that the UFS is taking in our quest to be a great university, one of the best in the world,” said Prof. Jonathan Jansen, the Rector and Vice-Chancellor of the UFS.

Dr Ngubane will be honoured for his immense contribution towards positioning South Africa as a major and an influential player in the development of arts, culture, science and technology internationally.

He was the first Minister of Arts, Culture, Science and Technology in the new, democratic South Africa appointed by the former President, Nelson Mandela, in 1994. He was re-appointed to lead this ministry again by former President Thabo Mbeki in 1999.

As Premier of KwaZulu-Natal from 1996 to 1999, Dr Ngubane is credited for his role in bringing about peace and reducing the political violence that ravaged the province at that time.

In 2004 he was appointed as Ambassador to Japan where he initiated, among other projects, the South Africa-Japan University Forum (SAJU).
He has been honoured for outstanding contributions to higher education and community development and holds Honorary Doctorates from the universities of Natal, Zululand, the Medical University of South Africa (Medunsa) and the Tshwane University of Technology.

He is currently the Chairperson of the SABC Board.

Minister Gordhan, on the other hand, formed an integral part of the constitutional transition of South Africa between 1991 and 1994. He chaired the Convention for a Democratic South Africa (CODESA) Management Committee – the midwife and negotiating forum for a free South Africa. He was also co-chair of the Transitional Executive Council, which was a governance structure tasked with ensuring South Africa’s transition process prior to the historic 1994 elections.

In 1994, with the dawn of a new democracy in South Africa, Mr Gordhan became a Member of Parliament and was elected as Chairperson of the Parliamentary Constitutional Committee, which oversaw the implementation of the new constitutional order. At the same time he played a leading role in drafting the present constitution of the democratic South Africa. He also led the process of formulating a new policy framework for local government transformation.

Mr Gordhan was appointed as Deputy Commissioner at the South African Revenue Service (SARS) in March 1998 after being deployed from Parliament as part of the government’s drive to transform the public service. The following year he was appointed as Commissioner for SARS with the important task, amongst others, to transform South Africa’s Customs and Revenue administration – a strategic governmental institution.

He has represented South Africa in many international undertakings, including several peacekeeping missions, as Chairperson of the Customs Workshop for the Second Global Forum on Fighting Corruption and Safe-Guarding Integrity (2001), and is often called upon to make presentations at tax seminars and customs conferences.

In 2000 he was appointed Chairperson of the Council of World Customs Organisation (WCO), based in Brussels, a position to which he was re-elected twice, thus serving from 2000 to 2006.

Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt@ufs.ac.za
19 April 2010

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