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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

Shack study holds research and social upliftment opportunities

2015-02-10

Photo: Stephen Collett

When Prof Basie Verster, retired head of the Department of Quantity Surveying at the University of the Free State (UFS), initiated an alternative form of housing for Johannes - one of his employees - a decision was made to base research on this initiative. This research project in Grasslands, Heidedal focused on the cost and energy efficiency of green and/or sustainable shacks.

Esti Jacobs from the Department of Quantity Surveying, together with an honours student in Quantity Surveying, a master’s student in Architecture, and young professionals at Verster Berry, helped with the project.

The physical goals of the project were to create a structure that is environmentally friendly, and maintains a comfortable interior climate in winter and summer, as well as being cost-effective to erect. The structure also had to be socially acceptable to the family and the community.

“The intention was to make a positive contribution to the community and to initiate social upliftment through this project. Structures such as the ‘green shack’ may serve as an intermediate step to future housing possibilities, since these structures are relatively primitive, but have economic value and could be marketable,” she said.

Esti explains the structure of the building, which consists of gum poles and South African pine bearers, with a timber roof and internal cement block flooring. The building is clad with corrugated iron and has a corrugated iron roof finish. Additional green elements added to the structure were internal Nutec cladding, glasswool insulation in walls, internal gypsum ceiling boards with ‘Think Pink’ insulation, internal dividing wall and door, polystyrene in the floors, and tint on the windows. A small solar panel for limited electricity use (one or two lights and electricity to charge a cellphone) and a Jojo water tank for household consumption by the inhabitants were also installed.

Esti said: “Phase one of the research has been completed. This phase consisted of an investigation into the cost of an alternative form of housing structure (comparing traditional shacks with the planned structure) as well as the construction process of the physical housing structure.

“Phase two of the research, commencing in February 2015, will last for two to three years. This phase will include the installation of temperature and relative humidity logging devices inside the existing traditional shack and the new green shack. The logs will be regularly monitored by the UFS Department of Quantity Surveying and Construction Management.

These data will enable the researchers to measure the differences in comfort levels inside the two different structures. The data, together with other information such as building materials and methods, are then processed by software programs. Through the simulation of different environments, building materials, and alternate forms of energy, software models can be used to come up with conclusions regarding more energy-friendly building materials and methods. This knowledge can be used to improve comfort levels within smaller, low-cost housing units.

The UFS will be working with Prof Jeff Ramsdell of the Appalachian State University in the USA and his team on the second phase of the project.

“This research project is ongoing and will be completed only in a few years’ time,” said Esti.

The results of the research will be published in accredited journals or at international conferences.

For more information or enquiries contact news@ufs.ac.za.

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