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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

The state of HIV/AIDS at the UFS

2010-05-11

“The University of the Free State (UFS) remains concerned about the threat of HIV/AIDS and will not become complacent in its efforts to combat HIV/AIDS by preventing new infections”, states Ms Estelle Heideman, Manager of the Kovsies HIV/AIDS Centre at the UFS.

She was responding to the results of a study that was done at Higher Education Institutions (HEIs) in 2008. The survey was initiated by Higher Education AIDS (HEAIDS) to establish the knowledge, attitudes, behaviours and practices (KABP) related to HIV and AIDS and to measure the HIV prevalence levels among staff and students. The primary aim of this research was to develop estimates for the sector.

The study populations consisted of students and employees from 21 HEIs in South Africa where contact teaching occurs. For the purpose of the cross-sectional study an ‘anonymous HIV survey with informed consent’ was used. The study comprised an HIV prevalence study, KABP survey, a qualitative study, and a risk assessment.

Each HEI was stratified by campus and faculty, whereupon clusters of students and staff were randomly selected. Self-administered questionnaires were used to obtain demographic, socio-economic and behavioural data. The HIV status of participants was determined by laboratory testing of dry blood spots obtained by finger pricks. The qualitative study consisted of focus group discussions and key informant interviews at each HEI.

Ethical approval was provided by the UFS Ethics Committee. Participation in all research was voluntary and written informed consent was obtained from all participants. Fieldwork for the study was conducted between September 2008 and February 2009.

A total of 1 004 people participated at the UFS, including the Main and the Qwaqwa campuses, comprising 659 students, 85 academic staff and 256 administration/service staff. The overall response rate was 75,6%.

The main findings of the study were:

HIV prevalence among students was 3,5%, 0% among academics, 1,3% among administrative staff, and 12,4% among service staff. “This might not be a true reflection of the actual prevalence of HIV at the UFS, as the sample was relatively small,” said Heideman. However, she went on to say that if we really want to show our commitment towards fighting this disease at our institution a number of problem areas should be addressed:

Around half of all students under the age of 20 have had sex before and this increased to almost three-quarters of students older than 20.
The majority of staff and a third of students had ever been tested for HIV.
More than 50% of students drink more than once per week and 44% of students reported being drunk in the past month. Qualitative data suggests that binge drinking over weekends and at campus ‘bashes’ is an area of concern.

Recommendations of the study:

Emphasis should be on increased knowledge of sexual risk behaviours, in particular those involving a high turnover of sexual partners and multiple sexual partnerships. Among students, emphasis should further be placed on staying HIV negative throughout university study.
The distribution of condoms on all campuses should be expanded, systematised and monitored. If resistance is encountered, attempts should be made to engage and educate dissenting institutional members about the importance of condom use in HIV prevention.
The relationship between alcohol misuse and pregnancy, sexually transmitted infections (STIs), HIV and AIDS needs to be made known, and there should be a drive to curb high levels of student drinking, promote non-alcohol oriented forms of recreation, and improve regulation of alcohol consumption at university-sponsored “bashes”.
There is need to reach out to students and staff who have undergone HIV testing and who know their HIV status, but do not access or benefit from support services. Because many HIV-positive students and staff are not receiving any kind of support, resources should be directed towards the development of HIV care services, including support groups.

Says Heideman, “If we really want to prove that we are serious about an HIV/AIDS-free campus, these results are a good starting point. It definitely provides us with a strong basis from which to work.” Since the study was done in 2008 the UFS has committed itself to a more comprehensive response to HIV/AIDS. The current proposed ‘HIV/AIDS Institutional response and strategic plan’, builds and expands on work that has been done before, the lessons learned from previous interventions, and a thorough study of good practices at other universities.

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

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