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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 multi-purpose residences open in January 2015

2014-06-18

The UFS is currently busy with exciting new accommodation developments on both the Bloemfontein and Qwaqwa Campuses.

This includes a new residence with a hotel and a conference/lecture hall on the western part of the Bloemfontein Campus and the building of another residence on the Qwaqwa Campus.

“We have done what was possible in our quest to maximise the number of beds available in the older residences on the Bloemfontein Campus,” says Quintin Koetaan, Senior Director: Housing and Residence Affairs at the UFS. “This we achieved by converting underutilised and unutilised dining halls and kitchens into bedrooms, which was totally insufficient to address the dire need for beds.”

“The new residence building will have different types of accommodation. I am very excited and look forward to the completion of this project. And this particular residence also brings a very exciting architectural design to the university environment.”

The residence, with multiple blocks for different accommodation, will be wheelchair friendly and numbering and signage will also be in braille. This futuristic-designed building will stand the test of time and will be provide student accommodation until 2030.The R60 million project is funded by the UFS and the Department of Higher Education and Training.

In step with international university accommodation trends – as with Yale's residential college system – this residence will house female first-years who will be mentored by postgraduate students. Postgraduates will be headhunted with the support of the Student Representative Council’s (SRC) postgraduate committee. These postgraduate students will represent all the faculties. Block A and B will accommodate 184 female first-years.

Each floor in this residence will have a study room, two lounges, a kitchen and a laundry for 25 students. Security will be very tight, with three levels of security: entrance to residence, corridor and individual bedroom door. There will also be perimeter camera surveillance and a security officer outside and inside the residence.

Block C will accommodate postgraduate students. The ground floor will house eight single-bed roomed flats. The first floor will have 16 single rooms sharing a bathroom, kitchen and living room, as well as one double room with its own bathroom. The second floor will have 21 single rooms sharing a bathroom, kitchen and living room.

Block D will house 18 hotel-like en suites, with a dining room where breakfast will be served. The target market here will be visiting academics and other university-affiliated visitors. Prices will be competitive to those of local guesthouses and hotels.

Bookings have already opened. Guests will be able to book in and access the hotel desk 24/7. The dining room, accommodating up to 60 people, will not only be open for hotel guests, but also for postgraduate students and UFS staff. Bookings will therefore be essential.

The expansion of bed spaces also took place at the Qwaqwa Campus. In 2012 a 200-bed residence with a state of the art computer room was completed. As a follow-up to this development, another 248-bed residence is now being built. In this particular residence, there will be designated post-graduate accommodation for 48 students.

The project will be handed over at the end of October 2014, with the first intake planned for January 2015.

Another development at the Qwaqwa Campus is the Chancellor’s House Bed & Breakfast. This B&B, with its 5 en suite rooms, is open for business for all UFS staff.

For enquiries or bookings at this new accommodation facility, contact:

- Undergraduate (first-year ladies’ residence):
Monica Naidoo at +27(0)51 401 3455 or NaidooM@ufs.ac.za

- Postgraduate:
Hein Badenhorst at +27(0)51 401 2602 or BadenH@ufs.ac.za

- Hotel:
Ilze Nikolova at +27(0)51 401 9689 or NikolovaI@ufs.ac.za

- Chancellor’s House Bed & Breakfast on Qwaqwa Campus:
Olga Molaudzi at +27(0)58 718 5030 or molaudziOD@qwa.ufs.ac.za

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