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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 and Mexico forge links

2006-03-30

Some of the guests attending the signing of the memorandum of agreement were in front from the left Prof Wijnand Swart (Chairperson: Centre for Plant Health Management at the UFS), His Excellency Mauricio de Maria y Campos (Ambassador of Mexico in Southern Africa), Prof Magda Fourie (Vice-Rector: Academic Planning at the UFS) and Dr José Sergio Barrales Domínguez (Rector of the University of Chapingo in Mexico).
Photo: Stephen Collett

UFS and Mexico forge links
The Centre for Plant Health Management (CePHMa) in the Department of Plant Sciences at the University of the Free State (UFS) is presenting its first international conference. The conference started yesterday and will run until tomorrow (Friday 31 March 2006) on the Main Campus in Bloemfontein.

The conference is the first on cactus pear (or prickly pear) in South Africa since 1995. It coincides with 2006 being declared as International Year of Deserts and Desertification by the United Nations General Assembly.

During the opening session of the conference yesterday a memorandum of understanding (MOU) was signed between CePHMa and the University of Chapingo (Universidad Autonoma Chapingo) in Mexico. The signing ceremony was attended by the Ambassador of Mexico in Southern Africa, His Excellency Mauricio de Maria y Campos, the Rector of the University of Chapingo, Dr José Sergio Barrales Domínguez, and the Vice-Rector: Academic Planning of the UFS, Prof Magda Fourie, amongst other important dignitaries.

“South Africa and Mexico have a lot in common where agricultural practices in semi-arid areas and the role of the cactus pear are concerned,” said Prof Wijnand Swart, Chairperson of CePHMa at the opening of the conference.

He said that the MOU is the result of negotiations between CePHMa and the Ambassador of Mexico in Southern Africa over the past 12 months.

“The MOU facilitates the negotiation of international cooperative academic initiatives between the two institutions. This entails the exchange of students and staff members of the UFS, curriculum development, research and community service,” said Prof Swart.

“During the next two days, various areas of interest will be discussed. This includes perspectives from commercial cactus pear farmers in South Africa, the health management of cactus pear orchards, selection of new cultivars of cactus pear, and the nutritional and medicinal value of the crop,” said Prof Swart.

In his welcoming message Prof Swart explained that in recent years there has been increased interest in the cactus pear for the important role it can play in sustainable agricultural systems in marginal areas of the world. These plants have developed phenological and physiological adaptations to sustain their development in adverse environments.

“The cactus pear can serve as a life saving crop to both humans and animals living in marginal regions by providing a highly digestible source of energy, water, minerals and protein,” said Prof Swart.

“In an age when global warming and its negative impact on earth’s climate has become an everyday subject of discussion, the exploitation of salt and drought tolerant crops will undoubtedly have many socio-economic benefits to communities inhabiting semi-arid regions,” said Prof Swart.

“Plantations of cactus pear grown for fruit, forage and vegetable production, as well as for natural red dye produced from the cactus scale insect known as cochineal have, over the last two decades, been established in many countries in South America, Europe, Asia and Africa. The crop and its products have not only become important in international markets, but also in local markets across the globe,” said Prof Swart.

Detailed discussions on the implementation of the MOU will take place between CePHMa and the University of Chapingo after the conference.

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

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