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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 academic delivers inaugural lecture on challenges confronting political science in the 21st century

2012-10-12

Prof. Hussein Solomon.
Photo: Stephen Collett
12 October 2012

Full version of the lecture

This week Prof. Hussein Solomon, Senior Professor in the Department of Political Studies and Governance delivered his inaugural lecture on the Bloemfontein Campus of the University of the Free State (UFS).

In his lecture, “Challenges confronting political science in the 21st century, A South African perspective”, Prof. Solomon explored five challenges to academic political science in general and to South African political scientists in particular.

The challenges include the need to localise international relations theory with an emphasis on the emancipatory dimensions; exploring the nexus between technology and politics; incorporating political anthropology into mainstream political science syllabi; rising to the challenge of governing Africa’s cities; and the dangers of over-specialisation in an era that demands the use of a broader academic lens.

According to Prof. Solomon, political science has come a long way from those heady days in 1950 when Lasswell could confidently state that politics was about who gets what, when and how.

“Indeed, the world of 2012 scarcely resembles the world of 1950. Immanuel Wallerstein was correct in his assessment that the modern world system is coming to an end. As political scientists, we need to interrogate our existing knowledge constructs in relation to this rapidly changing reality. We need to indigenise international relations theory and emphasise creating an emancipatory and counter-hegemonic discourse.

We need to explore the nexus between technology and politics to deepen our democracy by empowering the margins in our societies. We need to embrace political anthropology as we strive to understand non-Western forms of governance. We need to use these understandings of traditional societies as we create hybrid forms of urban governance that stress inclusivity as we overcome the politics of identity and difference. We need to heed the call of De Tocqueville and create a new political science to understand the new times by supplementing disciplinary insights with those from other disciplines. In doing so, political science will once more regain its relevance to humanity in the twenty-first century,” Prof. Solomon said.

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