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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

Council votes on appointment of senior staff

2004-11-18

The Council of the University of the Free State (UFS) today voted on the filling of three senior vacancies, including one post at Dean level and two at the level of Vice-Dean.

The Council voted as follows:


Dr Natie Luyt will be offered the post of Dean: Student Affairs	Prof Engela Pretorius will be offered the post of Vice-Dean: Faculty of Humanities	Dr Choice Makhetha will be offered the post of Vice-Dean: Student Affairs

“There are special challenges for the UFS in the short and medium term regarding transformation of our residences, and a certain combination of management qualities and skills is desirable. As a result of the diversity of the UFS’s student community it is therefore important to us to follow a team approach to deal with the challenges. With the combination of Drs Luyt and Makhetha, I believe we will be able to manage student affairs effectively and skillfully,” says Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS.

“It is wonderful that we are able to celebrate the outcome of this process that has brought forward such excellent candidates who reflect our country’s diversity. It shows that we can achieve the goals of quality and diversity at the same time,” says Prof Fourie.

Prof Pretorius obtained all her qualifications (BA, BA (Hons) (cum laude), MA (cum laude) and D Phil) from the UFS, except for the Certificate in Gender Policy Management (cum laude) which she obtained in 2000 from WITS. She joined the Department of Sociology at UFS in 1980 and has headed the Department since 2001. She acted as Vice-Dean: Faculty of Humanities since July 2004. She has some thirty publications to her credit, published both nationally and internationally and has delivered 20 national and international papers. She is a member of the South African Sociological Association and is a member of the Council of the association and of the Editorial Board of Society in Transition, the society’s journal. She is also a member of the South African Academy for Science and Art and the Federation of African Women Educationalists in South Africa (FAWESA). Project involvement includes the Australian Women’s Executive Development Programme and the project Executive Development of Senior Women in South African Higher Education Institutions. She is also an NRF panelist.

Dr Luyt obtained his qualifications (BA, BA (Hons) (cum laude), MA (cum laude) and D Phil) at the UFS and started his career at the same institution in 1980 as lecturer in Political Science. He was promoted to senior lecturer in 1983 and appointed as Director: Student Affairs in 1997. He has been acting as Dean: Student Affairs since 2003. Dr Luyt completed several work-related training courses, among others a course in ethnic and multiculturality at the Swiss Institute for Federalism and a course in conflict management at the South Tyrolean Economic and Social Institute.

Dr Makheta also obtained all her qualifications (BA, BA (Hons), MA in Political Science and Ph D in Political Science) at the UFS and started working as a student assistant in Political Science at the same institution in 1999. She was promoted to junior assistant in 2000, coordinator and facilitator of Political Science in 2001, assistant/acting Director: Student Affairs in 2001 and acting Director: Student Affairs in 2003. Dr Makhetha is currently a Senior Political Analyst at the Department of Foreign Affairs.

The UFS Council also approved the promotion of nine professors to the rank of senior professor. They are Proff Louise Cilliers (Department English and Classical Languages), Dap Louw (Department of Psychology), Philip Nel (Department Afro-Asiatic Studies, Sign Language and Language Practice), Dirk van den Berg (Department of History of Art and Visual Culture Studies) Dingie van Rensburg (Director: Centre for Health Systems Research and Develoment), Andries Raath (Department of Constitutional Law and Philosophy of Law), James du Preez (Department of Microbial, Biochemical and Food Biotechnology), Johan Grobbelaar (Department of Plant Sciences) and Louis Scott (Department of Plant Sciences).

This is the first group ever of senior professors at the UFS. The post level was created to provide better career and earnings opportunities for high quality academics and to increase the attractiveness of an academic career to young people.

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

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