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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

R40 million construction contract with black empowerment group starts at UFS

2006-09-04

During the ceremonial kick-off of the biggest construction project in the history of the UFS were from the left: Ms Vuyiwe Mkhupha (Manager of Sikeyi Construction), Prof Frederick Fourie (Rector and Vice-Chancellor of the UFS) and Prof Steve Basson (Head of the UFS Department of Chemistry). Photo: (Gerhard Louw)

R40 million construction contract with black empowerment group starts at UFS

The biggest construction contract in the history of the University of the Free State (UFS) to the value of R40 million has started on the Main Campus in Bloemfontein. The contractors are Ströhfeldt Construction, in a joint venture with Sikeyi Construction, a black empowerment partner.

The contract comprises the extensive modernising, refurnishing and extension of the Chemistry Building. This is the highest amount the UFS has ever spent on the refurnishing of a building.

A number of initiatives have contributed to the fact that the UFS Department of Chemistry is one of the foremost chemistry departments in the country:

Expensive equipment and apparatus to the value of almost R20 million were acquired by the department the past year;
The basis of this is a strategic partnership with Sasol, the biggest research and development company in the country;
The purchase of the most advanced 600MHz nuclear magnetic resonance spectro meter in Africa;
The purchase of a single crystal X-ray diffractometer; and
The purchase of a differential scanning calorie meter, used to test the effect of heat on chemicals. This apparatus comprises of the most advanced detectors in the world.

“Natural scientists need the necessary equipment, apparatus and laboratories to be able to exercise world-class science. Three years ago the UFS top management made a strategic decision to focus strongly on research and on our laboratories and lecture halls,“ said Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS, during the launch of the Chemistry Building’s refurbishment.

“I regard this project as a symbol of our investment in science and the academy,“ said Prof Fourie.

Prof Fourie said that the UFS spent almost R100 million in the last 5 years to renovate the Main Campus. New buildings such as Thakaneng Bridge were built and other such as the Reitz Dining Hall was renovated and converted into the Centenary Complex. “These projects, together with the refurbishment of the Chemistry Building, also show how the UFS contributes to the development and growth of not only Bloemfontein, but also how we invest in the Free State,“ said Prof Fourie.

According to Ms Edma Pelzer, Director: Physical Planning and Special Projects at the UFS, the current building originally comprised of the Moerdyk Building built in 1949 and a newer wing built in 1966. This building became too small and obsolete and a new part is now being added to the eastern side.

According to Ms Pelzer a great deal of the project comprises the dramatic upgrading and modernising of laboratories, existing mechanical systems and the installation of new systems. “The nature of the work of staff and students demands sophisticated mechanical systems such as air conditioning, fume hoods, the provision of gas, etc and therefore these received specific attention. The research laboratories, lecture laboratories and office areas will also be separated for safety and greater efficiency,” said Ms Pelzer.

“Interesting design solutions for the complex needs of the department were found and I foresee that the building and its immediate environment will be an adornment to the Main Campus after its expected completion in 2008,” said Ms Pelzer.

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

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