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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 sets trend for higher education institutions

2005-09-21

The University of the Free State (UFS) offers more service-learning courses than any other higher education institution in the country and has the highest number of students enrolled for these service-learning courses.

This was the research findings on higher education institutions conducted between 2001 and 2004 by the Joint Education Trust (JET) into service-learning courses. These are courses which seek to integrate service to the community into the academic core of higher education institutions.

The results of this research indicated that the UFS is one of the few higher education institutions in South Africa that have made progress in integrating community engagement into the mainstream academy.

According to the findings 2 233 students at the UFS participated in service-learning courses supported by JET, while 858 students at the University of Transkei (UNITRA), 636 students at the University of the Western Cape (UWC) and only 600 students at the University of the Witwatersrand (WITS) participated in service-learning courses.

In total there were 6 930 students participating in service learning courses supported by the JET at 10 institutions throughout the country.

The research also found that out of a total of 182 service-learning courses supported by JET countrywide, the UFS had the highest number of such courses at 42, followed by WITS with 28, the University of Kwazulu Natal with 26, UWC 24 and UNITRA with 22.

Nationally, most of the service-learning courses at higher education institutions are offered in the human sciences (62), followed by health sciences (37), education (26), agriculture (14), and economic sciences (11).

According to leading academics, service-learning is a credit-bearing, educational exercise in which students participate in an organised service activity that meets identified community needs and helps the student to gain a deeper understanding of course content and a sense of civic responsibility.

Reacting to the research findings, the Rector and Vice-chancellor of the UFS, Prof Frederick Fourie, said the university feels strongly that there should be integration of service-learning into the academic core of the institution.

“Through service-learning modules the UFS can give expression to its role of service to the community as an institution of higher learning, producing quality graduates who understand the communities in which they will have to function for the rest of their lives,” Prof Fourie said.

According to Mr Jo Lazarus, the project manager of the Community-Higher Education – Service Partnership (CHESP), which falls under the JET, a number of institutions have identified community engagement as a strategic priority and have allocated significant resources from their central budget towards its implementation.

Mr Lazarus said most students have an overwhelmingly positive attitude towards service learning.

“A large percentage of students surveyed indicated that their service-learning course helped to improve their relationship skills, leadership skills and project planning abilities. As significant is the fact that these courses also benefited them in terms of their awareness of cultural differences and opened their eyes about their own cultural stereotypes,” said Mr Lazarus.

“The key challenge still hampering the integration of service-learning as a core function of academic activity is that some institutions still see service-learning as an add-on, and nice-to-have activity,” he said.

According to Mr Lazarus higher education must demonstrate social responsibility and commitment to the common good by making available expertise and infrastructure for service-learning as a form of community engagement.

Media release
Issued by:  Lacea Loader
   Media Representative
   Tel: (051) 401-2584
   Cell: 083 645 2454
   E-mail: loaderl.stg@mail.uovs.ac.za
   20 September 2005

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