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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 takes 70 first-year students to the USA

2010-08-20

Mr Rudi Buys (middle, with tie) with some of the students selected for the F1 Programme
Photo: Gerhard Louw

The University of the Free State (UFS) has announced the names of the first ever group of 70 first-year students that will travel to the United States of America (USA) as part of the university’s Student Leadership Development Programme.

This group of students will spend two weeks at universities in the USA to experience student life and learn about leadership and diversity at these universities.

“This is a first for not only the UFS, but also for South Africa and we are incredibly proud. The programme is unique to any other student leadership development programme in the country. We are leading the way and are taking students to live and learn amongst students at various universities across the USA,” said Mr Rudi Buys, Dean of Student Affairs at the UFS.

The programme was one of the goals of Prof. Jonathan Jansen, Rector and Vice-Chancellor of the UFS, which he aimed to realise when he was appointed by the UFS in 2009.

“With the programme we want to develop participants’ thinking and capacity to lead in the contexts of diversity and change and we hope to direct them to programmes leading change in student life in general upon their return,” Mr Buys said.

The 70 students will leave for the USA on 22 September 2010. After spending some time there and learning more about their American peers’ lives and culture, they will return to the UFS on 7 October 2010.

“We took great care in selecting the 70 participants. They are representative of all our students, as well as students from our Qwaqwa Campus,” said Mr Buys.

A rigorous selection process was followed, which focused on the students’ academic excellence, their participation in student- and residence-life programmes and their interest in growing in the areas of, amongst others, leadership, diversity and citizenship. Each candidate had to undergo a pre-selection process, followed by a panel interview consisting of staff from various faculties and divisions at the UFS.

The students will stay in groups of about ten at the various universities, which include universities such as Cornell University, New York University, the University of Massachusetts, the Appalachian State University and Virginia Polytechnic University. “These universities will provide our students with accommodation and will present various academic and cultural programmes which our students will participate in and learn from,” said Mr Buys.

“We have also put a programme in place to prepare our students thoroughly for the trip. Because some of them have never travelled on an aeroplane, let alone travelled to a foreign country, we have made arrangements with the Department of Home Affairs for assistance with travel documentation, as well as special arrangements with the USA Embassy for assistance with visas. They will also be attending workshops focusing on, amongst others, research, leadership and diversity before their departure on 22 September 2010.

“Upon their arrival in the USA the group of students will firstly be taken to Washington DC where they will be briefed about American customs, etc. From there they will be placed at the various universities,” said Mr Buys.

Upon their return the students must be involved in student-life programmes on campus, establish volunteer programmes and initiate and establish mentoring programmes for their fellow students. “We want them to give back what they have learnt and experienced,” said Mr Buys.

“We are planning on implementing the Student Leadership Development Programme as an annual programme and are looking forward to this incredible programme through which this group of first-year students will have the opportunity of a lifetime to be true ambassadors of South Africa and, in particular, the UFS, as they leave for the USA,” he said.

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

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