Latest News Archive

Please select Category, Year, and then Month to display items

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 establishes links with the University of Ghent

2007-11-15

The University of the Free State (UFS) recently formalised its co-operation ties with the University of Ghent in Belgium. The two universities signed a memorandum of understanding during the Accenta Trade Fair, an annual event that incorporates activities such as business seminars, cultural events and exhibitions.

The signing of the memorandum of understanding took place via a live video conference linking the two institutions of higher learning.

“It was a wonderful moment because, after signing the memorandum of understanding on the Main Campus in Bloemfontein, the Rector and Vice-Chancellor, Prof. Frederick Fourie, actually showed us his signature on the screen while we were in Ghent”, said Prof. Koos Bekker of the Department of Public Management at the UFS, who was part of the delegation from the Free State.

The delegation consisted of the Premier, Ms Beatrice Marshoff, and several MECs and senior officials from the Free State provincial government, as well as the mayor, councillors and senior officials of the Mangaung Local Municipality. Several staff members of the UFS were also part of the delegation.

According to Prof. Bekker, the two universities will co-operate in various areas in terms of the memorandum of understanding.

“In the short term the collaboration will be focused on bio-fuels, public management and the digital divide, while discussions in other areas such as health services and organised crime are also under way,” he said.

As part of the memorandum of understanding, the following collaborative efforts are also envisaged:

Mr Lyndon du Plessis, a lecturer in the Department of Public Management, will be enrolled for a Ph.D. at both universities as from September 2008.

A research project involving both universities, the Mangaung Local Municipality and the City of Ghent, will be undertaken.
An investigation will be conducted by both universities regarding the possibility of writing a book on performance management in the public sector (negotiations with the publisher in this regard are under way).

An exchange programme involving students and staff from both universities will be established.

Academics from the UFS delivered papers during one of the forums that formed part of the Accenta Trade Fair programme in Ghent. Prof. Koos Bekker and Mr Lyndon du Plessis from the Department of Public Management delivered papers on strategic planning in practice on the first day of the event, which was devoted to scientific seminars. On the second day Prof. Lucius Botes, Director of the Centre for Development Support at the UFS, delivered a paper on economic development issues, and on the third day Prof. Gustav Visser, Associate Professor in the Department of Geography at the UFS, delivered a paper on tourism.

Papers on bridging the digital divide were presented during the video conference by academics in both Bloemfontein and Ghent.

As guests of honour at the Accenta Trade Fair, the Free State delegation was allocated the main exhibition floor space, covering 1 092 m². The Main Exhibition Hall covers a total surface area of 40 000 m². The Accenta Trade Fair attracts an average of 100 000 visitors annually. The UFS also participated as an exhibitor at the Trade Fair.

This visit was a follow-up of the previous visit, during which the Free State delegation was hosted by the City of Ghent and the provincial government of East Flanders for planning purposes from 14 to 24 April 2007.

Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt.stg@ufs.ac.za
14 November 2007

Back

Economic and Management Sciences

Education

Health Sciences

The Humanities

Law

Natural and Agricultural Sciences

Theology and Religion

Open Distance Learning

Business School

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept