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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 Council votes on top appointments

2003-11-24

The Council of the University of the Free State (UFS) today voted on the filling of four senior vacancies, including three posts at Vice-Rector level and one at the level of Dean.

The Council voted as follows:
- Prof Magda Fourie will be offered the post of Vice-Rector: Academic Planning
- Dr Ezekiel Moraka will be offered the post of Vice-Rector: Student Affairs
- Prof Teuns Verschoor will be offered the post of Vice-Rector: Academic Operations
- Prof Letticia Moja will be offered the post of Dean: Faculty of Health Sciences

Two of the candidates, Prof Teuns Verschoor and Prof Magda Fourie, are currently acting Vice-Rectors at the UFS. Prof Verschoor is acting Vice-Rector for Student Affairs and Prof Fourie is acting Vice-Rector for Academic Planning. Dr Moraka is currently Dean of Student Affairs at the University of Pretoria (UP). Prof Moja is currently the acting Dean of the Faculty of Health Sciences at the UFS.

According to the Rector and Vice-Chancellor of the UFS, Prof Frederick Fourie, the filling of these senior vacancies comes after one of the most thorough search and selection processes ever at the UFS.

“It is wonderful that we are able to celebrate the outcome of this process that has brought forward such excellent candidates who reflect our country’s diversity. It shows that we can achieve the goals of quality and diversity at the same time,” Prof Fourie said.

Prof Magda Fourie (49) received her Ph D on Institutional governance of higher education in transition: a South African perspective from the UFS in 1996. She joined the UFS in 1998, later becoming Director of the Centre for Higher Education Studies and Development and Professor in Higher Education Studies. She said in her declaration of intent her aspiration is to contribute to making the UFS the excellent university it foresees in its vision and mission. Academic planning should position the UFS with regard to its core activities strategically as an institution of excellence that will meet the future from a strong basis of academic integrity and credibility.

Dr Moraka (45) received his Ph D in Education Management on Management of change and conflict resolution by student affairs officers at historically white universities in South Africa from the UP in 2002. He is Dean of Students at the UP since 2001. Before that he was Head of Student Support and Student Social Services at the UP for six years. He was also, among others, a lecturer at a college of education and a pastor of the Dutch Reformed Church in Africa. He said in his declaration of intent that diversity can become so greatly emphasised that people can be driven further apart. Focus should be on moulding a student community where everyone can feel at home, a community which lives together and works together without destroying what is unique to each individual.

Prof Verschoor (53) received his LL D in 1980 at the University of Pretoria on The criminal responsibility of psychopaths and similar figures. He was professor in and Head of the Department of Criminal Law and Medical Law at the UFS for 17 years before becoming Dean of Students in 1994. He said in his declaration of intent that he dreams of the realisation of projects that are awaiting the enthusiastic support, bringing together and empowering of persons involved by a Vice-Rector that wants to see the UFS prosper in an era of continuing dynamic development. In this he would like to make a substantial contribution.

Prof Moja (46) received her MB ChB in 1982 from the University of Natal and her M.Med in Obstetrics and Gynecology in 1990 from the Medical University of South Africa (Medunsa). She became a full professor in 2003 at the UFS and has been acting as Dean of the UFS’s Faculty of Health Sciences since February 2003. She said in her declaration of intent that the challenge for her is to manage change with the ultimate aim of both achieving the vision of the UFS and satisfying the needs of the community. Some of the academic challenges include the training of more people from designated groups and rural areas. Careful planning and integration of the curriculum should be done to ensure that all students perform to their best.

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