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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 welcomes Prof Francis Petersen as new Vice-Chancellor and Rector

2017-04-02

Prof Francis Petersen takes up office as the 14th Vice-Chancellor and Rector of the University of the Free State today.

“On behalf of the UFS Council and the university community, I would like to welcome Prof Petersen to the university. He brings to the UFS a distinguished academic record, confident leadership, innovative thinking, and an understanding of the extent of the challenges being experienced by universities in the broader South African context,” says Mr Willem Louw, Chairperson of the UFS Council.

“I am excited to join the UFS and look forward to meeting the university community, to get to know the three campuses, and to engage with staff and students. In a way, it was a natural progression for me to be appointed in this position, having been Dean of the Faculty of Engineering and the Built Environment at the University of Cape Town (UCT), and then Deputy Vice-Chancellor: Institutional Innovation at the same university. On the other hand, I believe that universities in South Africa need strong and innovative leadership. I would like to make a contribution to the higher-education system in this regard. Moreover, I regard the UFS as a very good university, and see my challenge in taking the UFS to the next level,” says Prof Petersen.

“Challenges and making a difference motivate me – whether complex or simplistic, the opportunity to be able to provide solutions and taking people with me while developing these solutions, is what ultimately motivates me.”

“It is important that different viewpoints are respected. The UFS must be a place where everyone feels welcome. There must be a strong sense of belonging; staff and students must feel they are making a contribution to the university,” he says.

According to Prof Petersen, the major challenge for the university is its institutional climate. “My focus would be to strive towards creating an institutional climate of inclusivity, respect for one another, valuing diversity in all its forms, and to make the university a welcoming place. The UFS is in the process of developing an Integrated Transformation Plan (ITP) that will serve as the road map to address the institutional climate challenge, but will also assist (if implemented effectively) in excelling the UFS in areas of teaching and learning, research and innovation, and community engagement through scholarship,” says Prof Petersen.

“I am a good listener, I am outcome-based, and my vision for the university includes diversity, inclusivity, and academic excellence,” he says.

Prof Petersen was born in Oudtshoorn and grew up in Malmesbury in the Western Cape, where he also matriculated. 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. He 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.

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). 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.

Prof Petersen is married and has two sons. He was appointed by the UFS Council at the end of 2016 after Prof Jonathan Jansen stepped down as Vice-Chancellor and Rector on 31 August 2016, serving in this position since July 2009. Prof Nicky Morgan, Vice-Rector: Operations at the UFS, has been acting Vice-Chancellor and Rector since 1 September 2016.

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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