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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 student leaders for UFS

2013-08-29

Rudi Buys, Dean of Student Affairs (centre), with newly elected president of the Bloemfontein Campus SRC, Phiwe Mathe (left) and Matlogelwa Moema, president of the Qwaqwa Campus SRC.
Photo: Sonia Small
29 August 2013

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2013/14 Student Representative Councils: YouTube video

Phiwe Mathe and Matlogelwa Moema, both third year students, have been elected as presidents of the 2013/14 Student Representative Councils (SRC) of the University of the Free State’s Bloemfontein and Qwaqwa Campuses respectively. They now also serve as the presidency of the Central SRC and will take up their seats as voting members of the UFS council in September 2013. Thirty-eight candidates contested the 19 elective seats of the campus SRCs, for which 83 nominations were received.

Rudi Buys, Dean of Student Affairs, announced the completion of the elections at the two campuses as successful.Buys deemed the elections highly significant, considering it is the third year of peaceful elections since students adopted changes in student governance in 2011. These changes included, among others, the introduction of independent candidacy for elective portfolios and organisational candidacy in SRC sub-councils that hold ex-officio seats on the campus SRC. Changes also included the establishment of student representative seats in faculty forums and the adoption of reviewed SRC constitutions, Buys said.

The SRC elections at the Qwaqwa Campus were completed on 23 August 2013, while the elections at the Bloemfontein Campus took place on 26 and 27 August 2013. Elections at the Qwaqwa Campus showed a voter turnout of 44% and at the Bloemfontein Campus a turnout of 31.5%, which is among the highest in the country.

Both campuses reached the required quorums and the campus elections bodies, the IEA (Bloemfontein Campus) and IEC (Qwaqwa Campus), declared the elections free and fair and announced the results as a true reflection of the will of the student bodies at the campuses.

This year also saw the piloting of a central SRC elections oversight committee (CEC) to strengthen independent oversight of all elections. The CEC monitors the elections as free, fair and democratic and consists of senior academics and former student leaders of the Student Elders Council. Prof Loot Pretorius, inaugural chair of the CEC, announced the CECs confirmation of the SRC elections across campuses as free, fair and democratic.

Celebrations marked a mass meeting on the Bloemfontein Campus where the new student leaders were announced on Thursday 29 August 2013. There were cheers and singing as Quintin Koetaan, Head of the Bloemfontein IEA, on behalf of the two elections bodies, read the names of the newly-elected student leaders of both campuses. Delivering his victory speech, Phiwe thanked competitors for running a good debate, saying it was not about characters or personalities, but rather the ideas that would best serve a Kovsie. “Students will remain central and the ‘R’ is back in SRC,” he told the resounding crowd. Matlogelwa reiterated this message and said, "the SRC is for students and will serve all students equally."

Following on the heels of the SRC elections, voting for residence committees will take place next week with 618 candidates contesting 231 available positions. The elections of association executive committees will also take place in September.

The new SRC members of the Bloemfontein Campus are:

President: Phiwe Mathe
Vice-President: Tshepo Moloi
Secretary: Masiteng Paul Matlanyane
Treasurer: Willem du Plooy
Arts andCulture:Hlonipa Matshamba
Accessibility and Student Support:Anastasia Sehlabo
First Generation Students: Nthabiseng Malete
Legal and Constitutional Affairs: Mosa Leteane
Media, Marketing and Liaison: Callie Hendricks
Sport: Laurika Hugo
Student Development and Environmental Affairs: Bataung Qhotsokoane
Transformation: Christopher Rawson
Assosiations Council and Ex officio:Ntakuseni Razwiedani
Academics Affairs Council and Ex officio: TBC
Residence Council and Ex officio: Andricia Hinckermann
Commuter Council and Ex officio:Clarise Haasbroek
Postgraduate Council and Ex officio: Oluwatoba Fadeyi
International Council and Ex officio: Brian Hlongwane
Student Media Council and Ex officio: Keabetswe Magano
RAG Fundraising Council and Ex officio: Jaco Faul
Rag Service Council and Ex officio: Suzanne Maree

The new SRC members of the Qwaqwa Campu are:

President: MP Moema
Deputy-President: NT Mndebele
Secretary General: JC Mosiea
Treasurer General: NT Zuma
Politics and Transformation: IT Dube
Media and Publicity: ZF Madlala
Student Development and Environmental Affairs:SS Mtetwa
Off-Campus Students: TSJ Sithole
Arts and Culture: S Mabele
Academic Affairs: NE Litabo
Sport Affairs: TSG Mohlakoana
Religious Affairs:TW Mofokeng
Residence and Catering Affairs: A Ndabankulu
RAG Community Service and Dialogue: S Yende

Issued by: Lacea Loader
Director: Strategic Communication

Telephone: +27(0)51 401 2584
Cellphone: +27 (0) 83 645 2454
E-mail: loaderl@ufs.ac.za

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