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29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett
Prof Bradley
Prof Bradley Smith tackles the ambiguities surrounding trust misuse during divorce proceedings.

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

Three receive PhD degrees in Architecture at Winter Graduation ceremony
2015-07-08

Dr Hendrik Auret, Dr Gerhard Bosman and Dr Madelein Stoffberg.
Photo: Leonie Bolleurs

Three graduates from the University of the Free State’s (UFS) Department of Architecture received their PhD degrees at the 2015 Winter Graduation ceremony on the Bloemfontein Campus. According to Prof Walter Peters from Architecture, this is the first time in the history of the UFS that three PhD degrees in Architecture have been awarded simultaneously. It is country-wide a rare occurrence for three PhDs to be awarded in Architecture at one graduation ceremony.

“Previously, the UFS has only ever awarded a single PhD in Architecture, and that was in 1987, to Leon Roodt, a former head of the department. The first UFS honorary doctorate in Architecture was conferred on Gerard Moerdijk, architect of the Afrikaner church and the Voortrekker Monument. Gawie Fagan and Prof Bannie Britz, late head of the Department of Architecture, were other recipients of an honorary doctorate in Architecture,” said Prof Peters.

At the 2015 Winter Graduation ceremony, the UFS conferred PhDs in Architecture on Hendrik Auret from Roodt Architects in Bloemfontein as well as on Gerhard Bosman, and Madelein Stoffberg from the UFS Department of Architecture.

Dr Hendrik Auret

As an Architecture student at the university, Dr Auret obtained the degree BArchStud in 2004, a BArchStud (Hons) in 2005, and a March (Prof) in 2006, all cum laude. His Master’s design dissertation was judged the best from all South African Architecture learning sites, earning him the coveted ‘Corobrik Architectural Student of the Year’ award.

The work of the Norwegian architect and theorist, Christian Norberg-Schulz, served as the basis of Dr Auret’s PhD thesis, Care, place and architecture: a critical reading of Christian Norberg-Schulz’s architectural interpretation of Martin Heidegger’s philosophy, which considered the cogency of Norberg-Schulz’s architectural ‘translation’ of the German philosopher Heidegger’s thinking.

Dr Gerhard Bosman

On obtaining his BArchStud. and BArch degrees at the university in 1993 and 1995 respectively, Dr Bosman immediately joined the part-time staff of the Department of Architecture. As a lecturer in Building Construction, he developed an interest in vernacular and indigenous methods and techniques. Consequently, he built the first family home in Bloemfontein, for his wife, Debbie, and their two children, of earth construction, which been previously but erroneously considered inferior.

Despite that negative perception, Dr Bosman persuade the university to allow him to undertake post-graduate studies at the International Center for Earth Architecture (CRATerre-ENSAG) within the Ecole d' Architecture de Grenoble, France, from which institution,he was awarded the DPEA-Architecture de Terre qualification in 2000. In 2001,Dr Bosman was appointed to the full-time staff.

In 2003, when the opportunity arose, he became involved with SANPAD, the South Africa-Netherlands Research Project on Alternatives in Development, which lead ultimately to his PhD thesis: The acceptability of earth-constructed houses in central areas of South Africa.

Dr Madelein Stoffberg

In 2005, Dr Stoffberg enrolled as an Architecture student at the UFS, obtaining her BArchStud degree in 2007, the BArchStud (Hons) in 2008 and the March (Prof) in 2009, the latter cum laude. Immediately on graduating, Dr Stoffberg was appointed to her position as a part-time junior lecturer in the Department of Architecture.

During her studies, her attention was drawn to the concept of the spatial triad of Henri Lefebvre. Fascinated with the conceptand by the development of community centres as a contemporary architectural typology, she began her PhD degree.  

Entitled Lived reality, perception and architecture: two community centres interrogated through the lens of Lefebvre’s spatial triad, Dr Stoffberg investigated the relationship between the spatial understanding of the project architect and the community of two completed buildings in Port Elizabeth. She established a mismatch in perception, representation, and use of space, which could be bridged, however, by way of a qualitative research approach, instead of a quantitative one.


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