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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

The launch of a unique conservation project

2011-06-06

Our Department of Animal, Wildlife and Grassland Sciences launched a very special pilot project at Woodland Hills Wildlife Estate in Bloemfontein on Friday 03 June 2011, which aims to eventually aid in the conservation and study of one of Africa’s most graceful animals.

The project aims to provide the scientific basis needed for making future decisions in the best interests of the giraffe in the Kgalagadi Transfrontier Park in the Northern Cape and involves collaring and monitoring the behaviour and movement of these animals via GPS.

Based on the public interest in the giraffe and the increased impact of the growing giraffe population on the vegetation in the area, SANParks has been considering the translocation of a number of Kgalagadi giraffe. Due to limited information regarding their adaptation success and potential impact on their new environment, thorough planning and subsequent monitoring of the species is required.

Mr Francois Deacon from our university decided to undertake a PhD study to address the existing challenges. This will be the first study of its kind, undertaken on giraffe.

He says he decided on this project because of his love for animals and conservation. “There are nine sub-species of giraffe and seven of these are already endangered. I want to involve people and make them aware of the plight of the animals and the need for conservation,” he said.

The project kicked off on Friday morning, with a group of students and curious nature-lovers tracking a herd of giraffe at Woodland Hills. The challenge laid in identifying one of the animals which could easily be collared with a GPS device, tranquilising it, and applying the device, without harming the animal.

After a young bull was identified, it was up to Dr Floris Coetzee, a veterinarian, to get close enough to the animal to tranquilise it, and to the group of students to catch it and hold it down. All this was done perfectly and the animal was fitted with its new collars. The collars were designed and made by Mr Martin Haupt, who gained extensive experience in the design of similar collars for other research studies.

Mr Deacon will spend the following two weeks personally monitoring the animal constantly, to ensure that the collars do not cause any discomfort or injury and to determine whether it should be removed or adapted.

It has taken Mr Deacon over a year to plan the collaring process and the associated study. He says the main challenges in the project are financial, since it will cost approximately R500 000 to run over five years.

Thus far he has been supported by Mr Pieter Malan of Woodland Hills, Mr Cas Kempff of Cas Kempff Consulting Engineers and Prof. Frans Swanepoel of the UFS’ Directorate of Research Development, all of whom have been benefactors of the project.
Information gathered from the pilot project will provide the data to assess how to best fit the collar onto the giraffe to ensure that the animal is comfortable and that the collar will last in the wild. Scientific data will be generated and processed for use by the Woodland Hills Wildlife Estate management.

Should the pilot project be successful, between four and eight giraffe in the Kgalagadi will be tracked using the satellite GPS collars. The GPS collars will enable the constant recording of the location of individual giraffe for up to 2 years. This will allow control and monitoring of the animals in real-time.

The main benefits of the project include, amongst others, improved decision-making, informing tourism development, education and community involvement, improved sustainability and improved cross-border collaboration between South Africa and Botswana.

Anyone who wishes to get involved with the project or get more information, should contact Me. Sonja Buhrmann at sbuhrmann@vodamail.co.za or 0827735768.

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