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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 Council unanimously approves two senior appointments

2014-11-24

The Council of the University of the Free State (UFS) unanimously approved the appointment of Dr Lis Lange as Vice-Rector: Academic and Prof Sechaba Mahlomaholo as Dean: Education during its meeting on Friday 21 November 2014.

Dr Lis Lange is currently Acting Vice-Rector: Academic at the University of the Free State, where she holds a substantive position as Senior Director heading the Directorate for Institutional Research and Academic Planning (DIRAP). Prof Mahlomaholo is Head of the School of Mathematics, Natural Sciences and Technology Education at the UFS.

“These are two exceptional and trusted academics with international stature and I am delighted to welcome them as part of the senior leadership of the UFS. Dr Lange’s skills set pertaining to academic management and quality assurance make her one of only a few people with similar skills in the country, while Prof Mahlomaholo is a leading expert in community-based education,” says Prof Jonathan Jansen, Vice-Chancellor and Rector of the UFS.

Dr Lange joined the UFS in 2011. Before this, she was the Executive Director (2006-2010) of the Higher Education Quality Committee of the Council of Higher Education (CHE), and Acting CEO of the same organisation between August 2007 and April 2008. She has been involved in the development and implementation of science and technology and higher education policy in South Africa for a decade and a half, working in different capacities in the Human Sciences Research Council, the National Research Foundation and the Council on Higher Education. Dr Lange has served as a member of the board of the International Network of Quality Assurance Agencies in Higher Education (INQAAHE) and has participated in several international initiatives on quality assurance. She is the editor of an academic journal focused on the humanities, Acta Academica.

She has undertaken research and published in the fields of history, higher education and quality assurance. Her major concern in both research and practice is the role of higher education in the development of democratic societies, based on social justice. Dr Lange studied in Argentina, Mexico and South Africa, where she obtained a PhD in South African history from the University of the Witwatersrand.

Prof Mahlomaholo is a graduate of the Universities of the North, Western Cape and Harvard University in the United States. He is a National Research Foundation (NRF)-rated Professor of Education.

Before joining the UFS, he worked at six other universities where he was Deputy Dean in the Faculty of Education (UNIN-QwaQwa), Head of Professional Education (Vista University), Professor and Director of Research and Postgraduate Studies (MEDUNSA), Professor and Director of Curriculum Development (Central University of Technology), and Research Professor (North-West University).

His research interests lie in designing strategies mounted on Bricolage, Participatory Action Research and Critical Emancipatory Research as theoretical bases. He leads the NRF-sponsored project on the creation of Sustainable Learning Environments in schools. In this Participatory Action Research project, 28 PhD and 22 MEd students participate under the guidance of 15 academics. The project has relationships with the Global Network project (St Petersburg University), the Post-Colonial Education project (West Indies University) and the Discourse, Power, Resistance project (Plymouth University and now University of London). He has served as guest editor in the following ISI-indexed, peer-reviewed and accredited journals: the South African Journal of Higher Education (2010 and 2014), the South African Journal of Education (2011), Communitas (2012), the Journal of New Generation Sciences (2012), the Journal for Transdisciplinary Research in Southern Africa (2013) and the Journal of Education Studies (2013).

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