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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

SA cannot sustain momentum - Boesak

2010-09-02

Photo: Stephen Collett

South Africa finds it increasingly difficult to live up to the challenges facing it as a nation because of its failure to meet its democratic ideals and possibilities, peace and lack of self-belief.

This was according to renowned cleric and former political activist, Dr Allan Boesak, who recently delivered the CR Swart Memorial Lecture, the oldest memorial lecture at the University of the Free State (UFS). His lecture was on the topic Creating moments, sustaining momentum.

He said South Africa had plenty of opportunities to show the whole world what was possible if all the people of this country joined hands and worked together to build a truly united society. However, he said, the country somehow invariably contrived to find its way out of these wonderful possibilities.

He cited events of historical significance like Codesa, the inauguration of Nelson Mandela as the first democratic president of South Africa, the assassination of South African Communist Party leader, Chris Hani; and the rugby and soccer world cups.
To drive his point home about this dismal failure of the country to “sustain momentum”, he alluded to the current public servants’ strike that is gradually crippling public service.

“The public servants’ strike was neither unexpected nor is it completely unjustifiable. Most of us have understanding for the frustration of teachers and health workers. Their demands resonate with most of us, and I think that it is scandalous of SACP fat cats to tell workers to “stop crying like babies,” he said.

He also added to the criticism of the much-maligned decision of the government to spend billions of taxpayers’ money to purchase weapons when there was “no discernible military threat” to the country. He said the greatest threat to the security of the country was poverty, inequality and social cohesion.

“As for the argument that arms sales bring in foreign exchange – how can we be instrumental in killing the poor elsewhere with the intention of feeding our poor, and then our ill-gained profits feed only the already well-fed?” he asked.
“Can we see the hopeless contradiction, the total impossibility of being both the apostle of peace and a merchant of death?”

He also lambasted the Black Economic Empowerment (BEE) policy of the government which he said benefited only those connected to the political aristocracy.

“It couples with the unashamed, in-your-face display of wealth by the privileged elite in this country, the crass materialism of the so-called “bling generation”, and the casual carelessness with which promises to the poor are given and treated. It is only the public symptom of the deep-seated scorn our political elites feel for the poor,” he said.

He said the government’s disdain to the poor was “setting fire to our future”.

“The anger of people on the ground can no longer be denied or ignored, and little by little, the leadership articulating and directing this anger is being estranged from politically elected leadership, and even more disturbing, from our democratic processes,” he said.

He concluded that the country’s difficulty in dealing with race and racism was putting the reconciliation process kick-started by Mandela just over a decade ago, under a threat.

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