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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

Campus-wide poll to determine preferences among current staff and students for language models

2015-10-20

Language poll postponed until Thursday 22 October 2015

Due to the closing down of all UFS campuses on Wednesday 21 October 2015, the language poll has been postponed until Thursday 22 October 2015.

Invitation to take part in a campus-wide poll to determine preferences among current staff and students for language models.

As mandated by the Council on 5 June 2015, the senior leadership of the University of the Free State (UFS) has committed itself to a formal review process of the current language policy through a comprehensive process of consultation with all university stakeholders.

Since 19 August 2015, the following public sessions have taken place across all three campuses:

Public dialogue for staff and students, Qwaqwa Campus, 19 August 2015
Staff submissions, Bloemfontein Campus, 20 August 2015
External stakeholder submissions, Bloemfontein Campus, 24 August 2015
Public dialogue for staff and students, South Campus, 26 August 2015
Alumni submissions, Bloemfontein Campus, 27 August 2015
Expert panel discussion for staff and students with Q&A, Bloemfontein Campus, 31 August 2015
Staff, students, and external stakeholder submissions, Qwaqwa Campus, 9 September 2015
Panel discussion and public dialogue for students, Bloemfontein Campus, 10 September 2015
Expert panel discussion for staff and students with Q&A, Bloemfontein Campus, 11 September 2015
Student submissions, Bloemfontein Campus, 15 September 2015
Staff and student submissions, South Campus, 16 September 2015
Convocation submissions, Bloemfontein Campus, 30 September 2015

Further, written and online submissions from the entire university community were put forward until 18 September 2015, while the Convocation had until 30 September 2015 to submit. During the process, the Language Committee has met weekly and discussed the viability, benefits and challenges of various language model options, taking into account institutional, regional, national and global concerns, documents and information.

Following the university’s commitment to open, democratic practice, the UFS calls upon all its current staff and students to participate in a campus-wide poll in order to assist the Language Committee in determining possible preferences among current staff and students for language models. The possible models have emerged from the broad consultation process.

Please note that the campus-wide poll is NOT a formal voting process or referendum and will form only one part of many deciding factors that will be referred to the UFS Council on 20 November 2015 for their deliberations regarding the future of the language policy at the UFS. The poll, conducted by the Independent Electoral Commission (IEC), will be indicative of the preferences of staff and students for possible language model options, with specific focus on language of instruction.

The poll will take place at the following venues from 21-28 October 2015, 08:00-16:30, including the weekend:

Bloemfontein Campus: Kestell Residence Gazellie

Qwaqwa Campus: VIP Lounge

South Campus: Conference Hall

To take part in the polling, a valid staff or student card must be produced. Polling will take place on the basis of one poll per current staff member/student.

We look forward to your participation in the poll and hereby thank the entire university community for their ongoing interest and responsible engagement with the review process.

For inquiries send an email to language@ufs.ac.za or call 051 401 3422051 401 3422.

The UFS Language Committee

Click here for the question and answer page.

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