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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 appoints Prof Francis Petersen as Vice-Chancellor and Rector

2016-12-02

Prof Francis Petersen

The Council of the University of the Free State (UFS) is pleased to announce that it has decided to appoint Prof Francis Petersen as Vice-Chancellor and Rector of the UFS.

Announcing the decision to appoint Prof Petersen today (Friday 2 December 2016) during the quarterly Council meeting on the Bloemfontein Campus, the Chairperson of the UFS Council, Judge Ian van der Merwe, said the university was fortunate to be able to appoint a candidate of such good quality to the position.

Prof Petersen, Deputy Vice-Chancellor: Institutional Innovation at the University of Cape Town (UCT), and Prof Lis Lange, Vice-Rector: Academic at the UFS, were in line for the position. The university’s Selection Committee expressed equal preference for both and the two candidates were therefore recommended to Council for the position.

“It has been a truly participatory and transparent selection process, which has assisted in the Council being able to make this decision. The higher-education sector has been through a difficult and challenging time during the past few months and the Council is thankful that a leader like Prof Petersen can head the university in 2017 and beyond,” said Judge Van der Merwe.

In his statement of intent, which was submitted earlier as part of the application for the post, Prof Petersen indicated that it is important to imagine the UFS’s location in South Africa and Africa, to realise the challenges within this context, now and in the future, so as to sharpen the university’s focus to become a more inclusive, academic excellent institution, embedded in a culture of innovation. “Therefore, the ideal of academic excellence must be supported by an institutional framework of diversity and inclusivity. The Academic Project should focus on a unique educational experience for every UFS student, the enhancement of student throughput-rate in academic programmes through dedicated academic support, graduate attributes, and curriculum change and renewal,” he said. He furthermore stated that research and innovation must focus on impact and international visibility. “It is thus not only the increase in research and innovation output, but the quality and impact thereof.”

Prof Petersen was previously the Dean of Engineering and the Built Environment at UCT. He brings to the position of Vice-Chancellor and Rector his extensive experience of management in both the industry and academic sectors. He has been the executive head of strategy at Anglo American Platinum and head of the Department of Chemical Engineering at the Cape Technikon (now Cape Peninsula University of Technology). He is a member of the UCT Council, non-executive director on the Board of Pragma Holdings, non-executive director on the Board of the Unlimited Group, and Chairman of the Board of Trustees of the Seedcap (Venture Capital) Trust. Among others, he previously served as member on the Board of the Council of Scientific and Industrial Research, the National Advisory Council on Innovation, and the Council of the Academy of Science of South Africa.

He graduated from Stellenbosch University with a BEng (Chem Eng), MEng (Metal Eng), and PhD (Eng) degrees and completed a short course on Financial Skills for Executive Management. He is a recipient of the Ernest Oppenheimer Memorial Trust Award for research excellence, and was visiting professor at the Cape Technikon and extraordinary professor in the Department of Chemical Engineering at Stellenbosch University. He is a regular reviewer of journals, and member of a range of editorial boards for international journals.

Prof Petersen is also a registered professional engineer with the Engineering Council of South Africa and a Fellow of both the South African Institute of Mining and Metallurgy, and the South African Academy of Engineers.

Prof Petersen succeeds Prof Jonathan Jansen, who stepped down as Vice-Chancellor and Rector of the UFS on 31 August 2016. An international executive search agency specialising in academic appointments has assisted the UFS Council in its search for top-quality candidates.

Released by:

Lacea Loader (Director: Communication and Brand Management)
Telephone: +27 51 401 2584 | +27 83 645 2454
Email: news@ufs.ac.za | loaderl@ufs.ac.za
Fax: +27 51 444 6393

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