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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 honours young researchers

2006-02-10

Some of the guests attending the recognition function were from the left: Prof Magda Fourie (Vice-Rector: Academic Planning at the UFS), Mr Joseph Smiles (lecturer at the UFS Department of Political Science and Thuthuka grant holder), Prof Frans Swanepoel (Director: Research Development at the UFS) and Dr Carlien Pohl (lecturer at the UFS Department of Microbial, Biochemical and Food Biotechnology and Thuthuka grant holder).
Photo: Leonie Bolleurs

The guest speaker was Prof Jonathan Jansen, Dean: Faculty of Education at the University of Pretoria (UP). He gave tips to young and promising researchers on how to be an outstanding scholar.
What is a Scholar

UFS honours young researchers

The University of the Free State (UFS) last night honoured 24 young researchers who are taking part in the National Research Fund’s (NRF) Thuthuka programme.

The recognition function is the first of its kind at the UFS. “The renewed focus on research development that was recently announced at the official opening of the UFS by the Rector and Vice-Chancellor, Prof Frederick Fourie, is an indication of the institution’s endeavour to create an environment in which research can be improved and flourish. This can only be obtained when researchers are being valued and that is why it is important to honour our young researchers,” said Mrs Annelize Venter, researcher at the UFS Research Development Directorate and coordinator of the programme.

The focus on research was also touched on recently by President Thabo Mbeki during the opening of Parliament when he said: “We will 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. For its part, the government is determined to increase the resource allocation for research and development and innovation, and increase the pool of young researchers."

According to Mrs Venter, research done in 2004 shows that the majority researchers who publish are white males above the age of 50. “Many students who undertake magister studies choose not to conduct research, but rather to do a thesis and additional subjects. This means that research is not stimulated. Students also find it difficult to obtain financial support for postgraduate studies,” she explained.
“Thutuka is a capacity building programme of the NRF that is aimed to
fund and support the qualifications of women and young black scientists and other researchers who do not have a rating for postgraduate research. It is based on a funding partnership between the UFS and the NRF,” said Mrs Venter.

Last night Prof Frans Swanepoel, Director: Research Development at the UFS, added to his by saying: “With the Thuthuka programme we aim to create and sustain a research culture at the UFS, promote international research and train researchers of a high quality and enhance the research capacity at the UFS by focusing on women, black researchers and other promising researchers.”

The programme was started by the NRF in 2001. At that stage only 17 grants were made countrywide. Last year 370 postgraduate students took part in the programme.

According to Mrs Venter the programme was implemented at the UFS in 2003. “At that stage we only had 5 grant holders. This year there are 24 Ph D and magister students on the programme,” she said.

A couple of young promising researchers, who will be participating in the programme in 2007, also attended last night’s recognition function.

The guest speaker was Prof Jonathan Jansen, Dean: Faculty of Education at the University of Pretoria (UP). He gave tips to young and promising researchers on how to be an outstanding scholar.

Nine professors were also congratulated with their promotion to senior research professor, namely Proff Louise Cilliers (Department of English and Classical Languages), James du Preez (Department of Microbial, Biochemical and Food Biotechnology), Johan Grobbelaar (Department of Plant Sciences), Dingie Janse van Rensburg (Centre for Health Systems Research and Development), Dap Louw (Department of Psychology), Philip Nel (Department of Afro-asiatic Studies and Language Practice and Sign Language), Louis Scott (Department of Plant Sciences), Dirk van den Berg (Department of History of Art) and Andries Raath (Department of Constitutional Law and Philosophy of Law).

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
10 February 2006

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