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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

Change and growth at the University of the Free State

2011-07-04

Graphical representation of the High Performance Centre

“Come gather round people, wherever you roam. And admit that the waters around you have grown…”

These are the opening lines of Bob Dylan’s iconic single The times they are-a changing. They are also extremely apt words to describe the excitement about the winds of change and growth blowing across the University of the Free State, not only academically, but also physically.

Over the past few months there has been non-stop construction and growth of a physical nature, with several new buildings being erected and new sculptures rising up all over the Bloemfontein Campus.

The most visible and probably the most striking of all the new structures is the brand-new main entrance to the campus. This stunning new feature welcomes visitors to the campus in Nelson Mandela Drive, in the colours of each of the university’s seven faculties.

Once through this beautiful new gate, visitors have a choice of new and exciting features to explore on the campus.

The first is the brand new climbing wall, which is located against the West Block and Chemistry Buildings. This new addition to the campus is available for use by all enthusiasts of this exciting sport.

The Office of the Dean of Student Affairs manages the administration of the wall and students who want to climb can book at their office in the Student Centre at the Thakaneng Bridge. In order to ensure that students do not use the wall without permission, and to prevent accidents, the wall is covered by a tarpaulin, which is locked when the wall is not in use.

Next on the list of new developments is the high-performance gymnasium which is currently still under construction. With this project the university wants to create a work environment for its staff that will not only contribute to the cultivation of maximum work performance, but also to staff wellness.

The centre with its foyer and administrative offices will also consist of a health desk, university sports institute, sports sales, a spinning and aerobic centre, and dressing rooms. The total area will extend more than 2114 m².

Progress on other building projects, which commenced last year, is also very pleasing. One of the projects is a new Education Building which is being constructed opposite the UFS Sasol Library. Upon completion, this building will be used for the training of maths and science teachers in the Foundation Phase. It will include three classrooms for 100 students each and an auditorium for 225 students as well as an office block. The auditorium will also be used as a classroom. The building has been designed according to environmentally friendly principles to save water and use power effectively. Construction is going swimmingly and should be completed soon.

Planning for the construction of more student accommodation on the Bloemfontein Campus as well as the Qwaqwa Campus is also well underway. On the Qwaqwa Campus, a residence with 200 beds is being constructed. This also includes a computer laboratory. According to the planning, this residence is near completion. Furthermore, four residences will be constructed on the Bloemfontein Campus. These residences are in the planning phase.

In order to place technology within reach of Kovsie students and thereby empowering them, computer laboratories were installed at all residences. The computer laboratories will eventually make provision for approximately185 computers for student use. Proper security is also planned to safeguard the equipment.
A brand-new building for the Faculty of Health Sciences is also proceeding rapidly. This building will include a lecture hall for 200 students, five venues for 100 students each, as well as offices. Students from the School for Medicine and Occupational Therapy will make use of these facilities.

The new building for the Faculty of Economic and Management Sciences between the Flippie Groenewoud Building and the Wynand Mouton Theatre is also coming along nicely.

On the university’s Qwaqwa Campus a new Education building is being constructed. This building will include a lecturing hall with 100 seats, four 50-seat classrooms, six offices, ablution facilities, biology and science laboratory, as well as an information technology laboratory for 60 students.

In the meantime, existing buildings are being renovated on all the campuses. This includes, amongst others, improvements to the Architecture Building, the Biotechnology Building and the quarters for service workers on the Bloemfontein Campus. Other improvements that have already been completed include renovations to the Odeion’s foyer and the Callie Human Centre.

A special memorial park for women, residential accommodation within a sports environment, and a botanical garden are also among the beautiful, exciting new sites to be seen on the campus.

Coupled with all the beautiful sculptures, funded by the Lotto Sculpture project, our university’s campuses will soon be a more vibrant, beautiful attraction.

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