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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.

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Community of Qwaqwa gives Prof Petersen a warm Basotho welcome

2017-05-16

Description: Prof Petersen with Basotho hat and blanket Tags: Prof Petersen with Basotho hat and blanket

Prof Francis Petersen, Vice-Chancellor and Rector of the University of the Free State
Photo: Ian van Straaten

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Various stakeholders pledged their support to the newly-appointed Vice-Chancellor and Rector of the University of the Free State (UFS), Prof Francis Petersen, during the first in a series of welcoming events that was held at the Qwaqwa Campus on Thursday 11 May 2017.

A message of support and welcome from the Paramount Queen of the Bakoena Royal Council, Mofumahadi Mathokoana Mopeli, took everybody in attendance back three decades to the time when the campus was first established.

“The Qwaqwa Campus of the then University of the North was created to swell this area and the broader Eastern Free State with intellectual capacity,” she said.

“It is with this in mind that we encourage you, Prof Petersen, to continue upholding the best of your predecessors. Search for what they could not achieve and learn from that. Traditional leadership in this area will always be a friend to the university,” she added.

Prof Petersen received a warm Basotho
welcome from Morena Thokoana Mopeli and
Paramount Queen Mofumahadi Mathokoana Mopeli of
the Bakoena Royal Council. With them is
Mrs Cheslyn Petersen.
Photo: Thabo Kessah

The Thabo Mofutsanyana Education District was represented by the Acting District Director, Lindiwe Mabaso, who expressed the district’s pride in being associated with the university.

“Our district is excelling in Mathematics and Science, and this can be attributed to the educators that we get from the Qwaqwa Campus. We are proud to say that we are number one nationally when it comes to Mathematics and Science, and this is through the support we get from the campus. Our schools will continue to be centres of excellence under the new leadership of Prof Petersen,” she said.

Staff and students weigh in

Both Nehawu and Uvpersu expressed their optimism in working with Prof Petersen.

Branch chairperson of Nehawu, Teboho Pitso, said the union appreciated the fact that Prof Petersen was taking over the leadership of the institution at a very difficult time, both institutionally and nationally.

“As workers, we are faced with a lot of challenges and we hope that none of us will be retrenched under your leadership,” he said to an appreciative audience consisting of various internal and external stakeholders.

Acting Chairperson of UVPERSU, Khethiwe Biyo, said the workers’ union was happy that Prof Petersen believed in teamwork.

“Your commitment in working with us is appreciated. We look forward to learning from you about institutional innovation,” she said.

Students were represented by the Qwaqwa Campus SRC President, Njabulo Mwali, who expressed the need for a deeper and detailed transformation process.

“Your expertise and skills have set you above all other aspirant applicants for this position, and we hope that we will learn a lot on this journey,” he said.

“We at the UFS are actively, intentionally,
and continuously engaged in promoting
diversity.”

"Ensure fairness"

In his response, Prof Petersen emphasised the importance of inclusivity and innovativeness. He said, “Staff and students at the three sites of learning must do all they can to ensure that the UFS realises its goal of being an inclusive institution, one that provides equal access and opportunities to everyone, makes a conscious effort to prevent discrimination, and ensure fairness.”

“Being committed to inclusivity means that we at the UFS are actively, intentionally, and continuously engaged in promoting diversity. This diversity is expressed through our people and through the curriculum, and in the way we work with our communities to promote awareness, empathy, and understanding of the complex ways individuals interact. As you know, our ultimate goal as a university is not only to educate young people up to the point that they graduate. What they learn during their time with us should help shape them into people who can think innovatively in order to address the challenges that face us in the 21st century,” he said.

The Qwaqwa Campus Chorale and the award-winning choir from The Beacon Secondary School in Phuthaditjhaba provided the entertainment.

Similar events will respectively be hosted on the South and Bloemfontein Campuses on 18 and 19 May 2017.

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