Latest News Archive

Please select Category, Year, and then Month to display items

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 breakthrough on SRC

2005-06-10

The Council of the University of the Free State (UFS) today unanimously approved the establishment of a Central Student Representative Council (CSRC) to ensure the democratic participation of students at its three campuses in the governance of the university.

In a major breakthrough and transformation step for student governance, the Central SRC will include representatives of the main campus in Bloemfontein, the Vista campus and the Qwaqwa campus of the UFS.

The establishment of the Central SRC follows the incorporation of the Qwaqwa campus into the UFS in January 2003 and the incorporation of the Vista campus in Bloemfontein into the UFS in January 2004.

According to Dr Ezekiel Moraka, Vice-Rector: Student Affairs, today’s decision of Council is the result of a lengthy, negotiated agreement between the three campuses. Independent experts facilitated part of the process.

With the establishment of a Central SRC, the UFS has adopted a federal student governance model whereby the CSRC is the highest representative student body on matters of common concern for all students.

However, the three campuses of the UFS will retain autonomous SRC structures for each campus with powers and responsibilities for matters affecting the particular campus.

This arrangement will be reviewed after a year to make allowance for the phasing out of students at the Vista campus, as was agreed in the negotiations preceding the incorporation of that campus into the UFS.

The central SRC will have a maximum of 12 members made up of members of the campus SRCs, including the presidents of these three SRCs. In total, the main campus will have 5 representatives, the Qwaqwa campus will have 4 representatives and the Vista campus will have 3 representatives.

From these 12 members a central SRC president will be chosen on a quarterly basis to represent the general student body at Executive Management, Senate and Council.

In another key decision and significant step forward affecting student governance, the Council also approved amendments the constitution of the Student Representative Council (SRC) of the main campus. These amendments were the results of deliberations of student organizations, the SRC and the Student Parliament of the UFS main campus.

The amendments to the constitution of the main campus SRC determines that nine of the 18 SRC members must be elected by means of proportional representation and nine on the basis of an individual, first-past-the-post election.

This decision comes in the wake of calls by certain student organizations on main campus for proportional representation to be included as a means of electing student representatives.

The following portfolios of the main campus SRC will be contested by individual candidates on the basis of first past the post:

president
secretary
academic affairs
legal and constitutional affairs
student development
arts and culture
men’s internal liaison
ladies internal liaison
media, marketing and liaison

The following nine portfolios will be contested by affiliated organizations on a proportional representation basis.

two vice-presidents
treasurerdialogue and associations
transformation
campus affairs and recreation
sport
international affairs
community service

It also is a breakthrough to have all constitutional changes processed and approved at the June meeting of the Council, with all relevant student organizations having been part of the process and accepting the outcome of the process.

According to the chairperson of the UFS Council, Judge Faan Hancke, today’s unanimous decisions on student governance are an indication of how all UFS stakeholders represented in Council are committed to finding win-win solutions in the interest of the university.

“Once again the UFS has reached another milestone in its transformation and has shown the rest of the country that we are pioneers in the field of reaching intelligent solutions to complex situations,” Judge Hancke said.

According to Dr Moraka, the central SRC constitution will come into effect from the start of the second semester this year.

MEDIA RELEASE

Issued by: Lacea Loader
    Media Representative
    Tel: (051) 401-2584
    Cell: 083 645 2454
     E-mail: loaderl.stg@mail.uovs.ac.za

10 June 2005

Back

Economic and Management Sciences

Education

Health Sciences

The Humanities

Law

Natural and Agricultural Sciences

Theology and Religion

Open Distance Learning

Business School

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept