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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

Multi-disciplinary research approach at UFS

2005-10-25

UFS follows multi-disciplinary research approach with opening of new centre

“A new way of doing business in necessary in the research and teaching of agriculture and natural sciences in South Africa. We must move away from departmentalised research infrastructures and a multi-disciplinary approach to research involving several disciplines must be adapted,” said Prof Herman van Schalkwyk, Dean: Faculty of Natural and Agricultural Sciences at the University of the Free State (UFS).

Prof van Schalkwyk delivered the keynote address during the launch of the Centre for Plant Health Management (CePHMa) at the Main Campus in Bloemfontein today (21 October 2005). CePHMa is an initiative of the UFS Department of Plant Sciences.

According to Prof van Schalkwyk a tertiary institution must practice multi-disciplinary research to be a world-class research institution. “It is difficult for researchers to admit that they do not know a lot about each other’s area of speciality. It is therefore necessary for researchers to make a paradigm shift and to focus on inter-disciplinary co-operation. To do this, we must encourage them to work together and to find a common language to communicate ideas en establish symbiotic relationships,” said Prof Van Schalkwyk.

“We tend to think that research is better and faster if it is specialised. This is not true. The new generation of scientists are young and they are trained to form a concept of the total system and not to focus on a specific area of speciality. At the UFS we encourage this approach to research. This was one of the main reasons for the establishment of CePHMa,” said Prof Van Schalkwyk.
CePHMa is the only centre of its kind in Africa and is established to extend the expertise in plant health management in South Africa and in Africa, to train experts in plant health and to conduct multi-disciplinary research about the health of agricultural crops.

“CePHMa is a virtual centre comprising of ten disciplines applicable to crop production and crop protection,” said Prof Wijnand Swart, Chairperson of CePHMa during the opening ceremony.

“The UFS is the leading institution in Africa in terms of news crop development and manages three research programmes that concentrate on new crops, i.e. the New Crop Pathology Programme, the New Crop Development Programme and the Insects on New Crops Programme. Other applied research programmes that are unique to the UFS are genetic resistance to rust diseases of small grain crops and sustainable integrated disease management of field crops,” said Prof Swart.

“Because the expected growth in population will be 80% in 2020 in sub-Saharan Africa, the future demands of food produce in Africa will be influenced. Therefore research will in future be focused on ways to improve food security by employing agricultural systems that are economically viable and environmentally sound,” said Prof Swart.

“Thorough knowledge of the concept of holistic plant health management is crucial to meet the challenge and it is therefore imperative that innovative crop protection and crop production strategies, with particular emphasis on plant health, be adopted. This is why the Department of Plant Sciences initiated the establishment of CePHMA,” he said.

According to Prof Swart there is a shortage of expertise in plant health management. “The UFS has shown the potential to address the demand of the sub-continent of Africa regarding expertise training and CePHMa is the leader in southern Africa to provide in this need,” he said.

The appropriateness and quality of training in plant health management is reflected in the fact that students from Ethiopia, Eritrea, Malawi, Uganda, Zambia, Ghana, Tanzania, Cameroon, Angola, Mozambique and Lesotho have already been trained or are in the process of being trained in at the UFS.

Scientists from CePHMa have forged partnerships with numerous national and international institutions including the Agricultural Research Council (ARC), various community trusts, seed, pesticide and agricultural chemical companies, in addition to overseas universities.

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

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