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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

Shortage of quantity surveyors discussed at UFS

2006-03-24

During the recent visit of the Association of South African Quantity Surveyors (ASAQS) to the University of the Free State (UFS) were from the left Mr Egon Wortmann (Director: ASAQS), Prof Basie Verster (representative of the Free State on the ASAQS and head of the Department of Quantity Surveying and Construction Management at the UFS), Mr Greyling Venter (Chairperson: Free State branch of the ASAQS), Prof DG Brümmer(Vice-President: ASAQS) and Mr Patrick Waterson (President: ASAQS).
Photo supplied

Shortage of quantity surveyors discussed at UFS

“The South African building industry is experiencing an unprecedented high level of economic growth and prosperity. This is causing a definite shortage of registered quantity surveyors,” said Mr Egon Wortmann, Director of the Association of South African Quantity Surveyors(ASAQS) during the association’s recent visit to the Department of Quantity Surveying and Construction Management at the University of the Free State (UFS).

“This shortage is especially noticeable in local and national governments where unqualified and inexperienced staff, consultants and/or facilitators are now appointed,” said Mr Wortmann.

In doing so, the authorities that have adopted this approach are according to Mr Wortmann actually acting illegally and are not in compliance with the legal and statutory requirements of South Africa. “These unprofessional practices are unproductive, it leads to frustration and is strongly condemned by the ASAQS,” he said.

“The service delivery of these unqualified and unregistered service providers is often sub standard and does not comply to the legal requirements of the profession. It may also result in the tarnishing of the image and high professional standards set by the quantity surveying profession,” said Mr Wortmann.

“Universities offering programmes in quantity-surveying and construction management are also negatively affected by the high levels of activity in the building environment. Suitable lecturing staff are leaving the academic institutions as they are attracted to better opportunities being offered in the building industry. The ability of the tertiary institutions to attract young academics, to train them and to keep them in the longer term, is therefore almost impossible”, said Prof Basie Verster, head of the Department of Quantity Surveying and Construction Management at the UFS and representative of the Free State on the ASAQS.

According to Prof Verster the UFS supplies more than its quota of qualified quantity surveyors to the South African building industry. “Although more than 460 students are registered in construction related programmes at the UFS, we are as the ASAQS’s concerned about the shortage of students that can enter the construction industry. In our case, we are experiencing a shortage in black female students,” he said.

“Of the 460 postgraduate students, 38% are black of which 20% are female students. Graduates do also not necessarily stay in the country. As the UFS’s programmes are accredited overseas, a lot of our students leave the country for working opportunities elsewhere,” said Prof Verster.

Mr Patrick Waterson, President of the ASAQS, appealed to quantity surveyors to, when they are approached, consider academic careers or to make themselves available to lecture on a part time basis. “I also appeal to quantity-surveying practices, construction companies and developers to consider taking part in training activities,” he said.

The ASAQS has over the years developed a proud tradition within the quantity-surveying profession. Consequently membership of this organisation is a sought after goal for many members within the building environment. International agreements with various countries are also in place whereby it is mutually agreed that local as well as overseas qualifications are mutually acceptable on a reciprocal basis.

A more recent addition to the list of agreements is the reciprocity agreement entered into with the Royal Institution of Chartered Surveyors which makes it possible for South African based quantity surveyors to practice in over 120 countries worldwide.

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

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