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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 takes lead in improving quality of training in economics in schools

2006-06-20

The fourth international workshop for trainers in the National Council on Economic Education’s (NCEE) outreach programme for Africa, Latin America, Asia and the Middle East will be presented in Bloemfontein from 18-24 June 2006.

“Because of the rapid success we achieved in the Free State with similar workshops in Economics education that were presented by the NCEE the past year, we have now invited representatives from education departments and universities of five other provinces to attend the international workshop for trainers,” said Prof Klopper Oosthuizen, lecturer at the University of the Free State’s (UFS) Department of Agricultural Economics and initiator of the cooperative agreement with the NCEE.

The UFS and the Free State Department of Education are the NCEE’s first partners in Africa who received this training. “The attendance of the five provinces and universities is the first step in the extension of the programme to the rest of the country,” said Prof Oosthuizen.

The NCEE is based in the United States of America (USA) and the workshop forms part of the council’s effort to improve the quality of the training of Economics teachers and lecturers across the world.

“South Africa is urgently in need of efforts to improve the integration of black people into the market economy. An understanding of how markets work is one of the pillars of democracy. Equipping young people with economic understanding and skills will help empower them for responsible roles as individuals and citizens,” said Prof Oosthuizen.

According to Prof Oosthuizen representatives from the education departments of the Northern Cape, Western Cape, Eastern Cape, KwaZulu-Natal and North West will also be attending the international workshop for trainers. Representatives from the Universities of Rhodes, of KwaZulu-Natal, North West and the Durban University of Technology as well as the Cape Peninsula University of Technology will also attend the workshop.

During this workshop teachers and lecturers in Economics will receive certificates.

Various subjects will be covered during the workshop such as world trade patterns, cost and benefits of free trade, exchange rates and international finance. The training will be done by representatives from the NCEE by using methods such as direct instruction and role play.

The NCEE is also in the process of training teachers and learning facilitators in the Free State in an effort to improve the quality of Economics classes in secondary schools.

“A group of 84 teachers and learning facilitators were trained in December 2005, 50 were trained in January 2006 and the last group of 40 will be trained at the UFS Main Campus in Bloemfontein from 26 June - 1 July 2006,” said Prof Oosthuizen.

During this seminar the teachers will be trained in issues such as broad social goals in an economy, economic decision making, government’s role in a market economy and fiscal policy. The training will also be done by representatives from the NCEE.

The NCEE has been working together with international partners since 1992 to strengthen their Economics teaching systems. They have already succeeded in increasing literacy in Economics at schools in the USA and more than 20 East Block countries. More than 1,5 million learners in the East Block countries have already been served by this initiative. Since 2004 the NCEE’s focus has moved away from the East Block countries to Africa, Asia, Latin America and the Middle East.

“Our future plans include strengthening the growing partnership between the UFS, the Free State Department of Education and the NCEE. We also want to establish a council and centres for economic education which will serve as an umbrella for our joint efforts,” said Prof Oosthuizen.

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

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