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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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Association of Former SRC Presidents – first of its kind

2013-08-19

Some of the former SRC presidents who attended the inaugural dinner were, from the left: Roelf Meyer, Bloemfontein Campus 1970; Dr More Chakane, Qwaqwa Campus 1990; vice-chairperson of the AFSP; Dr Anchen Laubscher, first woman president of the Bloemfontein Campus 2003; and Prof Voet du Plessis, Bloemfontein Campus 1967/8.
Photo: Stephen Collett
19 August 2013

The University of the Free State (UFS) made history this weekend with the establishment of its Association of Former SRC Presidents (AFSP) – the first association of its kind after the merging and incorporation of public institutions in 2003–2004.

Twenty-two former SRC presidents attended the inaugural dinner to launch the association on Women's Day, Friday 9 August 2013, and recognised especially the attendance of all four female presidents that previously chaired the SRC. Other guests included former rectors and chairpersons of the UFS Council, as well as chairpersons of the Alumni.

The attending presidents served during the period 1967–2012, either at the former University of the Orange Free State (UOFS), the Qwaqwa Campus of the former University of the North, South Campus of the former Vista University and the University of the Free State.

“Your very personal narratives as former student leaders during the troubled past of our history in South Africa matter most as you design the questions for and purpose of an authentic conversation with student leaders today – this will set your association apart from others," said Rudi Buys, Dean of Student Affairs.

Former SRC president of 1975/6 and now founding member and chairperson of the association, Dr Michiel Strauss, said that this is the opportunity for former student leaders to give back to the younger generation.

“It is true that many middle-aged white South Africans have a deep sense of debt and obligation towards the youth of our country. We owe them an apology for the discrepancies of the past. This apology should be more than just words. Deeds of reconciliation and restitution must be seen.

“As for myself; I was president of the SRC of the then UOFS in the same period in which the biggest part of the youth of South Africa suffered so much in their struggle for freedom in our country.

“In my personal capacity, as well as in my official capacity as SRC president, I did nothing to try and understand and/or co-operate in the struggle of my peers. This fact haunts me until this day.

“The question then for people like me and so many others, is: Where do I invest my time and energy and passion for this country? Where will my contribution make a real difference? There is no better answer to this burning question than to invest in the human resources in our beloved South Africa, and more focused – to invest in the young people.

“There is something meaningful and beautiful happening at the UFS and it is now a leader in academic standards, reconciliation, leadership formation and nation building. I can think of no better place to make my small contribution,” Dr Strauss said.

“As former student leaders, we have a sense of purpose to contribute to the university and there is no better time to start than now. It is my privilege to be part of this great initiative and I look forward to what will be achieved,” said Dr More Chakane, deputy chairperson of AFSP and former SRC president of the Uniqwa Campus of the University of the North in 1990 (now the Qwaqwa Campus of the UFS).

Roelf Meyer, known for the prominent role he played in the negotiations to end apartheid in South Africa and chairperson of the Civil Society Initiative (CSI) of South Africa, said his time as a leader at the university has given him the opportunity to apply and use his skills and experience and share it with the new leaders of the institution. "The UFS is highly regarded because of the exceptional standards and excellence portrayed by its senior leadership. Where I can make a difference, I'll do it with pleasure and pride," he said. Meyer served as SRC president in 1970.

The association met on Saturday 10 August 2013 to adopt its interim constitution and consider operational matters, while also reaching agreement on its core functions in support of its purpose to transfer change leadership skills to incumbent student leaders and mediate meaningful contributions of Alumni to the growth of the university.

“We greatly value the declared intention of AFSP to work with the university to design meaningful and sustainable mentorship programmes to support and guide student leaders on campus, and have pledged our support in this regard,” said Buys.

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