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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

SRC elections of our Bloemfontein Campus

2011-07-26

The Student Council elections of our university at the Bloemfontein Campus will take place on 29 and 30 August 2011. These official election dates were announced by Mr Rudi Buys, Dean: Student Affairs, on 25 July 2011.

Nominations open on Wednesday, 27 July 2011 and the elections, which are constituted according to the SRC Constitution, shall be handled by the Independent Electoral Agency, which shall be instituted by the SRC Constitution with this in view.

“The elections introduce a new era in student leadership and governance, because student representation will now constituted in such a way that affords the majority of students the opportunity to vote directly for their representatives. Senior leadership structures are extended in the new Constitution, in order to allow more students to hold senior positions,” states Mr Buys.

The SRC elections follow on the approval of a new Constitution that was accepted by our Council on 3 June 2011.

The Constitution was drafted over a period of eight months by the Broad Student Transformation Forum (BSTF), consisting of students, in order to design a new dispensation in student structures. The BSTF, which decided on new models of student representation in collaboration with independent facilitators, consists of more than 70 student organisations and residences. The changes to the Constitution were decided on and accepted by the BSTF, after recommendations from four student study groups, which investigated student leadership and governance in depth, at national as well as international level, were taken into account. The study groups visited nine (9) other SA universities, as well as investigated student representation at internationally renowned universities like Cornell, Yale and Stanford in the United States of America.

Ms Modieyi Motholo, Chairperson of the Interim Student Committee, says that she is very proud of what the students have achieved with the new Constitution. “I wish to accord recognition to all the students who lead the process for all their hard work. Constitutional revision is a strenuous process and it is nothing short of a miracle that the students could not only reconstruct the Constitution, but also have it accepted in less than a year.”

The important changes include, amongst others:

Candidates no longer stand on behalf of parties in the elections, but as independent candidates for 10 predetermined portfolios for which students can vote directly;
Students also directly vote for a President and a Vice-President;
Nine (9) SRC members serve ex-officio as SRC members by virtue of being chairpersons of nine additional student councils established by the Constitution. Amongst others, the councils include a postgraduate student council, an international student council, a student media council and a student academic affairs council;
More stringent eligibility requirements are set for candidates, namely that students who wish to run in the elections has to, amongst others, sustain an academic average of more than 60%, and hold proven student leadership experience (which could be verified by the Independent Electoral Agency).

“With the SRC elections, students have the opportunity to firmly entrench the changes in student governance on which they have decided on by themselves firmly, as a sustainable model for democracy at our Bloemfontein Campus. It speaks volumes that the number of leadership positions for which candidates can make themselves available, in essence has been increased by the number of additional student sub-councils from 21 to 67, because it brings about much more direct representation for different students across the campus,” says Mr Buys.

“I firmly believe that the upcoming student council elections will be a success,” says Motholo. “I wish the students, who are prepared to sacrifice a year of their lives in service of the student community as a member of the SRC, all of the best.”

The Qwaqwa Campus’ election schedule shall be announced within the next week, as well as the date of the institution of the Central Student Council (CSC).

Media Release
26 July 2011
Issued by: Lacea Loader
Director: Strategic Communication
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: news@ufs.ac.za

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