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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

ANC is not a party of the people - Mbeki

2010-08-30

“The unions in this country do not understand the political economy of South Africa. They think that the ANC is the party of the people. The ANC is the party of the black middle class. The fact that the masses vote for it does not mean they control it. The policies of the ANC favour the black middle class and the established businesses. They do not favour the working class.”

This was said by renowned economic and political commentator Mr Moeletsi Mbeki, brother of former president Thabo Mbeki, during a guest lecture he recently presented to Economics students of the University of the Free State (UFS) in Bloemfontein.

“You just have to look at the types of houses that the ANC government builds for ordinary South Africans,” he said.

“If you had a party that was a pro-working class party it would not have built these so-called RDP houses that are being built by the ANC government. The unions have all along been under the illusion that the ANC is the government of the working class and (Zwelinzima) Vavi and them are now beginning to realise that this is not the case.

“The public-sector workers are in a special dilemma. They think the ANC is their ally but at the same time they feel they are not getting any benefits out of this alliance. Therefore you are beginning to get a very acrimonious environment emerging between the public-sector unions and the government.”

Regarding the current issue of the Protection of Information Bill and the proposed media tribunal that have brought the media and the government onto a collision course, Mbeki said the ANC government was trying to muzzle the media because it wanted to safeguard corruption within government.

“The question of freedom of information is very closely linked to the rise in corruption in the government,” he said.

“What the politicians are doing is that they are trying to hide that corruption. The media in this country have been playing a very critical role in exposing cases of corruption. That is why Vavi now has bodyguards.”

He said he recently met Vavi, the General Secretary of Cosatu, surrounded by four bodyguards. He said Vavi told him that he was getting death threats because he was opposing corruption in government.

Mbeki said the economic policies of South Africa were the “worst in the world” because they benefited people who were already rich and militated against the emergence of entrepreneurs.

“In fact, one of the serious downsides of Black Economic Empowerment (BEE) is that it takes people who should normally be entrepreneurs and who should be creating new companies and new jobs, out of that space and just makes them wealthy. BEE has been a disaster because it created this massive economic inequality; it created this class of idle rich who have tons of money but do nothing,” he added.

He said the under-investment in the economy was having dire consequences in terms of unemployment and poverty. He said this, coupled with the growth of consumption that Black Nationalism was driving, was actually driving down the ability of the economy to absorb labour.

“What really lies at the bottom of our economic problems in South Africa is that we have too much of a one-party dominance of our political system. We need more competition in our political system and until we realise the policies of the ANC are not going to change,” he said.

Mbeki’s guest lecture was on the topic: Architects of Poverty: Why African capitalism needs changing.

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

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