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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

New challenges for animal science discussed

2006-04-04

Some of the guests attending the congress were from the left Dr Heinz Meissner (honorary president of the South African Society for Animal Science (SASAS) and senior manager at the Animal Production Institute of the Agricultural Research Council), Mr Paul Bevan (President of SASAS) and Prof Magda Fourie (Vice-Rector: Academic Planning at the UFS).
Photo: Lacea Loader

New challenges for animal science discussed

The South African Society for Animal Science (SASAS) is presenting its 41st Congress at the University of the Free State’s (UFS) Main Campus in Bloemfontein.

The congress started yesterday and will run until Thursday 6 April 2006. The theme is New challenges for the animal science industries.

It is one of the largest congresses in the 45 years since SASAS was founded in 1961. Among the delegates 12 African countries are represented, with the biggest delegation from Kenya. Delegates are also from the United States of America, Iran, Turkey, Germany, the Netherlands and Portugal and African countries like Zimbabwe, Mozambique and Botswana.

“Many of our members play an important role in the training of animal scientists at universities. The congress is specifically industry orientated so that scientists can interact with farmers through the respective producer organisations,” said Prof HO de Waal, Chairperson of the organising committee and lecturer at the UFS Department of Animal, Wildlife and Grassland Sciences.

According to Dr Heinz Meissner, honorary president of SASAS and a senior manager at the Animal Production Institute of the Agricultural Research Council, the National Livestock Strategy (NLS) Plan clarifies the role and responsibility of the livestock sector.

“Through this strategy we need to focus on enhancing equitable access and participation in livestock agriculture, improve global competitiveness and profitability of the livestock sector and ensure that the ventures implemented do not over utilise our resources,” said Dr Meissner.

In her welcoming address, Prof Magda Fourie, Vice-Rector: Academic Planning at the UFS highlighted the related challenges that the UFS will be focusing on specifically over the next five years. “We have identified five strategic clusters that represent broad areas of excellence in research and post-graduate education. Two of these are food production, quality and safety for Africa and sustainable development,” she said.

“The food safety and security cluster will focus on the production of food in all its varieties within the African context, encompassing the entire value chain – from production to consumption and nutrition related issues. This would include a strong emphasis on sustainable production systems,” she said.

According to Prof Fourie the rural development cluster will engage in questions around the role of higher education in sustainable development. “One of the focus areas in this strategic cluster pertains to sustainable livelihoods. It refers to a way of approaching development that incorporates all aspects of human livelihoods and means by which people obtain them,” she said.

Prof Fourie said that the challenges we are facing such as food production can only be effectively addressed through collaborative efforts. “That is why it is important that collaboration takes place between different scientific disciplines, researchers, institutions and countries who are confronted with similar difficulties,” she said.

According to Prof de Waal the congress will give key role players a unique opportunity to present a profile of what they perceive an animal scientist should be and state their specific requirement regarding the animal sciences and its applications.

“In this way we can determine what the industry’s needs are and we can re-align our curriculum to suit these needs,” said Prof de Waal.

During the next two days, various areas of interest will be discussed. This includes ruminant and monogastric nutrition, animal physiology, beef, dairy, sheep and ostrich breeding and sustainable farming covering the range from commercial to the small-scale farming level.

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

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