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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

Full week of graduation ceremonies at UFS in April

2015-04-10

Autumn always sees the UFS’s first graduation ceremony of the year on the Bloemfontein Campus.

From 14 – 17 April 2015, graduates will once again be rewarded for their hard work while top speakers will address them in the Callie Human Centre. There will be a ceremony at 09:00 and at 14:30 each day on all four days of the graduation.

The programme for the 2015 April Graduation is as follows:

Tuesday 14 April 2015:

Professor Himla Soodyall will be the speaker at both ceremonies on this day. Prof Soodyall is a Medical Scientist for the South African Institute for Medical Research. She is also a Principal Medical Scientist for the National Health Laboratory Service, and a Director for the Human Genome Diversity and Disease Research Unit at the University of Witwatersrand.

During the first ceremony of the day at 09:00, all diplomas/certificates and B degrees in the Faculty of Natural and Agricultural Sciences will be awarded. Only Honours degrees in the Faculty of Natural and Agricultural Sciences will be awarded at the 14:30 ceremony.

Wednesday 15 April 2015:

Wednesday will see Ndumiso Hadebe take the stage to address graduates at both ceremonies.

At the age of 23, Hadebe is the Founder and Managing Director of Master Frontiers Consulting, a firm that capacitates leaders and managers to achieve business goals through their people. He worked previously as a Researcher at Shanduka Black Umbrellas, a flagship enterprise and supplier development programme of the Shanduka Foundation.

He has been received numerous awards for excellence in leadership, such as the Sedibeng District Municipal Mayor’s Award for Service and Leadership. He is a Brand South Africa Ambassador and Read Educational Trust Ambassador.

All diplomas/certificates, B and Honours degrees in the Faculty of Economic and Management Sciences, except B Com degrees, will be awarded during the morning ceremony at 09:00. Later, at the 14:30 ceremony, only B Com degrees in the Faculty of Economic and Management Sciences will be awarded.

Thursday 16 April 2015:

Multiple award winning South African TV presenter, Leanne Manas, will be the speaker at both Thursday ceremonies.

Manas has graced our screens for over a decade. Not many broadcasters can boast having had live TV experience, 5 days a week for 12 years. She is currently the anchor of SABC 2’s flagship breakfast programme, Morning Live. Leanne is a qualified Speech and Drama teacher. having studied at London Trinity College. She also has an Honours degree in English.
Diplomas/certificates up to and including Honours degrees in the Faculty of the Humanities, Social Sciences, and Communication Sciences will be awarded during the ceremony at 09:00. The 14:30 ceremony will have diplomas/certificates up to and including Honours degrees in the Faculty of the Humanities’ other qualifications except for Social Sciences and Communication Sciences.

Friday 17 April 2015:

Dr Maria Phalime will be the speaker at both ceremonies on Friday.

Phalime is a medical doctor and award-winning author. She practiced for a brief period as a general practitioner in South Africa and the United Kingdom, before leaving medical practice to pursue non-clinical interests. She has worked in trade and investment promotion, and has undertaken research and consulting in the areas of economic development and business facilitation.

Diplomas/certificates up to and including Honours degrees in the Faculty of Education (CE, NPDE and ACE excluded) will be awarded during the ceremony at 09:00. Diplomas/certificates up to and including Honours degrees in the Faculties of Health Sciences, Law, and Theology will be awarded at the 14:30 ceremony.

Click here for the simple layout of the 2015 April Graduation programme:
http://www.ufs.ac.za/adhoc-pages/2014-graduation-ceremony/graduation-ceremony

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