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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.

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UFS hones focus to nurture world-class research - Business Day

2006-02-10

Sue Blaine
THE University of the Free State plans to concentrate academic study in five areas to strengthen its status as a research institution, the university said yesterday.

The Bloemfontein-based university will focus on areas it classes as development (economics, health, literacy and other human activities) and social transformation — an analysis of how South African society is changing from a philosophical and political viewpoint.

The other three research areas are new technologies, water resources and security, and food production and security.

“It makes sense to concentrate the university’s human resources, infrastructure, financial resources and intellectual expertise,” said university rector and vice-chancellor Prof Frederick Fourie.

The move introduces a style of research that matches international trends.

Universities in Canada, Britain and Australia are setting up their research departments in this way.

In SA, the universities of Stellenbosch, the Witwatersrand, Cape Town and KwaZulu-Natal have embarked on similar strategies.

Fourie gave the example of his alma mater, the US’s Harvard University, whose Nanoscale Science and Engineering Centre is an example of “clustering” on a larger scale.

The centre is a collaboration with Harvard, the Massachusetts Institute of Technology, the University of California, Santa Barbara, the Museum of Science, Boston, and universities in the Netherlands, Switzerland and Japan.

Fourie said the modern research world was so diverse and complex that no university could cover all bases so it was better to establish areas of expertise that made it different from its peer institutions.

Having scientists and researchers work in teams meant certain issues could be researched and developed in a multidisciplinary manner. “I think it’s the only way in which any university can excel. This will help SA become world class in selected areas,” Fourie said.

It is in chemistry that the cluster model has already had its most visible results, with a slice of the university’s on-campus pharmacological testing company Farmovs, established in the 1980s, sold to the US’s Parexel International.

The company is one of the largest biopharmaceutical outsourcing organisations in the world, providing knowledge-based contract research, medical marketing and consulting services to the global pharmaceutical, biotechnology and medical device industries, according to Biospace, an internet-based company providing resources and information to the life science industry.

President Thabo Mbeki, in his state of the nation address last Friday, committed government to allocating more resources to research, development and innovation, and increasing the pool of young researchers in SA.

He said government would “continue to engage the leadership of our tertiary institutions focused on working with them to meet the nation’s expectations with regard to teaching and research”.

The university used to be home to several A-rated scientists, who are considered by a peer review, conducted by the National Research Foundation, to be world leaders in their fields, but had lost them to other institutions. Fourie hopes to lure them back, and with them postgraduate students and funding for their work.

“At universities where you get a star researcher they tend to attract people and funding; if they leave they take that with them,” he said.

Fourie said R50m would be spent on the project, with some already spent last year and the last disbursements to be made next year.

There is R10m in seed money to gather experts and improve equipment and infrastructure, and R17m has been invested in chemistry equipment and staff.

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