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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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Graduates encouraged to use their knowledge to the benefit of SA

2017-06-28

Description: Graduation read more photo 27 June 2017 Tags: Graduation read more photo 27 June 2017

On 26 June 2017, the last day of its mid-year graduation
ceremonies, the University of the Free State conferred
388 master’s and 72 doctoral degrees.
Photo: Charl Devenish

You have the knowledge, which is a big resource, and should use it to the benefit of South Africa. This was the overwhelming message to graduates obtaining their master’s and doctoral degrees at the University of the Free State (UFS).

Their responsibility was emphasised by the likes of Justice Mahube Molemela during the ceremonies in the Callie Human Centre at the Bloemfontein Campus on 26 June 2017. Justice Molemela, Judge President of the Free State Division of the High Court and Acting Justice of the Supreme Court of South Africa, was the guest speaker at the morning and afternoon ceremonies.

The UFS conferred 388 master’s and 72 doctoral degrees on the final day of its mid-year graduation ceremonies, which was the biggest set of ceremonies in the university’s history. The doctorates came from the Faculty of Natural and Agricultural Sciences (30), Faculty of the Humanities (15), Faculty of Economic and Management Sciences (9), Faculty of Education (8), Faculty of Health Sciences (5), and Faculty of Theology (5). A total of 5 258 degrees were conferred over six days from 19 to 26 June 2017.

Future dependant on youth
Justice Molemela said the master’s and doctoral graduates have the skills to make a difference. “The future of a nation is largely dependent on its youth playing a meaningful role in creating a strong economy, culminating in a good standard of living for everyone.”

She said they should plough back into their communities and give opportunities to others. “I am certain that if each one of you thinks innovatively in your respective fields, you will find solutions which will eradicate poverty, improve service delivery, and hence our education will advance gender equity, and promote public participation.”

Dr Khotso Mokhele, UFS Chancellor, said these graduates have every reason to hold their heads high, their shoulders square, and walk with a bit of an attitude, as they have distinguished themselves.

Generation of new knowledge
According to Prof Francis Petersen, Rector and Vice-Chancellor, the UFS strives to be a university that is research led. “For me, one of the important aspects about universities which set them apart from other training and vocational institutions is the generation of new knowledge,” he said at a lunch function for PhD graduates on 26 June 2017. He feels it is critically important for them to make a contribution to the country.

Dipiloane Phutsisi, Principal and Chief Executive Officer of the Motheo TVET College in the Free State, also emphasised this. Phutsisi was the guest speaker on 23 June 2017. “Your courage and eagerness to face the future and tell the truth in the midst of this confusion, is highly desired by South Africans.”

Justice Ian van der Merwe, Judge of Appeal at the Supreme Court of Appeal and former Chair of the UFS Council, was the guest speaker at the ceremonies on 22 June 2017. He encouraged graduates from a chapter in the book War and Peace by Leo Tolstoy.

“There is no greatness where there is not simplicity, goodness, and truth (according to Tolstoy). Or maybe more modernly translated: There is no greatness where simplicity, goodness, and truth are absent.”

Click here to see a list of Deans’ and Senate medals awarded.

Graduations ceremonies:

19 June 2017:

Faculty of Education, except educational qualifications in Open and Distance Learning – South Campus
Faculty of Health Sciences, Faculty of Theology, and Faculty of Law (including the School of Financial Planning Law)

“Every one of us, is destined for greatness. In the words of Dr Martin Luther King: Everyone has the power for greatness, not for fame but greatness, because greatness is determined by service.” – Dipiloane Phutsisi (Guest speaker and Principal and Chief Executive Officer of the Motheo TVET College in the Free State)

Photo Gallery
Livestream Footage (morning session)
Livestream Footage (afternoon session)

Photo: Charl Devenish

20 June 2017:

Faculty of Natural and Agricultural Sciences: All Bachelor’s degrees
Faculty of Natural and Agricultural Sciences: All Diplomas and Bachelor Honours degrees

“Graduation marks a start of a new and wonderful journey. During the last couple of years you have not only developed your intellect, but also expanded what I call your social self,” - Prof Francis Petersen, Rector and Vice-Chancellor

Speech: Prof Francis Petersen (morning)
Speech: Prof Francis Petersen (afternoon)
Photo Gallery
Livestream Footage (morning session)
Livestream Footage (afternoon session)

Photo: Charl Devenish

21 June 2017:

Faculty of Economic and Management Sciences: All certificates, diplomas, Bachelor’s degrees, and Bachelor Honours degrees, excluding BCom degrees
Faculty of the Humanities: Social Sciences and Communication Sciences only

“Graduation is one of the most accomplished achievements one can ever experience.” – Justice Connie Mocumie (Guest speaker and Judge of Appeal at the Supreme Court of Appeal)

Photo Gallery
Livestream Footage (morning session)
Livestream Footage (afternoon session)

Photo: Charl Devenish

22 June 2017:

Faculty of Economic and Management Sciences: BCom degrees only
Faculty of the Humanities: All qualifications, except Social Sciences and Communication Sciences

“The question is not if you will make mistakes, but how do you deal with your mistakes? Do you admit them, do you learn from them, and do you grow as a person?” – Justice Ian van der Merwe (Guest speaker and Judge of Appeal at the Supreme Court of Appeal)

Photo Gallery
Livestream Footage (morning session)
Livestream Footage (afternoon session)

Photo: Johan Roux

23 June 2017:

Educational qualifications in Open and Distance Learning – South Campus

“Class of 2017, go and make your own unique contributions but remember to look into your own heart. South Africa needs your skills, your innovation, knowledge, your expertise and creativity.” – Dipiloane Phutsisi (Guest speaker and Principal and Chief Executive Officer of the Motheo TVET College in the Free State)

Photo Gallery
Livestream Footage (afternoon session)

Photo: Charl Devenish

26 June 2017:

All faculties: master’s and doctoral degrees

“Class of 2016/2017 graduates: You are critical thinkers, you can analyze, you can think independently. That is why you managed to successfully complete postgraduate degrees and diplomas.” – Justice Mahube Molemela (Judge President of the Free State Division of the High Court and Acting Justice of the Supreme Court of South Africa)

Photo Gallery
Livestream Footage (morning session)
Livestream Footage (afternoon session)

Photo: Charl Devenish

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