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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 research sheds light on service delivery protests in South Africa

2015-01-23

UFS research sheds light on service delivery protests in South Africa

Service delivery protests in the country have peaked during 2014, with 176 major service delivery protests staged against local government across South Africa.

A study by the University of the Free State (UFS) found that many of these protests are led by individuals who previously held key positions within the ANC and prominent community leaders. Many of these protests involved violence, and the destruction had a devastating impact on the communities involved.

This study was done by Dr Sethulego Matebesi, researcher and senior lecturer at the UFS. He focused his research on the dynamics of service delivery protests in South Africa.

Service delivery protests refer to the collective taken by a group of community members which are directed against a local municipality over poor or inadequate provision of basic services, and a wider spectrum of concerns including, for example, housing, infrastructural developments, and corruption.

These protests increased substantially from about 10 in 2004 to 111 in 2010, reaching unprecedented levels with 176 during 2014.

The causes of these protests are divided into three broad categories: systemic (maladministration, fraud, nepotism and corruption); structural (healthcare, poverty, unemployment and land issues); and governance (limited opportunities for civic participation, lack of accountability, weak leadership and the erosion of public confidence in leadership).

In his research, Dr Matebesi observed and studied protests in the Free State, Northern Cape and the North-West since 2008. He found that these protests can be divided into two groups, each with its own characteristics.

“On the one side you have highly fragmented residents’ groups that often use intimidation and violence in predominantly black communities. On the other side, there are highly structured ratepayers’ associations that primarily uses the withholding of municipal rates and taxes in predominantly white communities.”

Who are the typical protesters?

Dr Matebesi’s study results show that in most instances, protests in black areas are led by individuals who previously held key positions within the ANC - prominent community leaders. Generally, though, protests are supported by predominantly unemployed, young residents.

“However, judging by election results immediately after protests, the study revealed that the ANC is not losing votes over such actions.”

The study found that in the case of the structured ratepayers’ associations, the groups are led by different segments of the community, including professionals such as attorneys, accountants and even former municipal managers.

Dr Matebesi says that although many protests in black communities often turned out violent, protest leaders stated that they never planned to embark on violent protests.

“They claimed that is was often attitude (towards the protesters), reaction of the police and the lack of government’s interest in their grievances that sparked violence.”

Totally different to this is the form of peaceful protests that involves sanctioning. This requires restraint and coordination, which only a highly structured group can provide.

“The study demonstrates that the effects of service delivery protests have been tangible and visible in South Africa, with almost daily reports of violent confrontations with police, extensive damage to property, looting of businesses, and at times, the injuring or even killing of civilians. With the increase of violence, the space for building trust between the state and civil society is decreasing.”

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