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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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Outstanding alumni celebrated at the Chancellor’s Distinguished Alumni Awards

2017-08-28

Description: Outstanding alumni celebrated at the Chancellor’s Distinguished Alumni Awards Tags: Outstanding alumni celebrated at the Chancellor’s Distinguished Alumni Awards

From the left: Former Miss World and UFS Medical student, Rolene Strauss; Rector and Vice-Chancellor,
Prof Francis Petersen; The Chancellor’s Distinguished Alumnus of the Year,
Vian Chinner; and Chancellor of the UFS, Dr Khotso Mokhele. Photo: Charl Devenish

Alumni Awards Photo Gallery

Alumni are the heart and soul of a university, a legacy that lives on for generations, bringing pride to the alma mater. Each year, the University of the Free State (UFS) through the Chancellor’s Distinguished Alumni Awards, celebrates its outstanding alumni, who have stood out among their peers, making waves in their careers, at home and abroad. The UFS Chancellor, Dr Khotso Mokhele, said the university plays a pivotal role in ensuring that students enjoy a life-long relationship with their alma mater. He encouraged the UFS management to create opportunities to engage students during their years of study, in order to create this mutually-beneficial relationship into the future.

The Chancellor’s Distinguished Alumnus of the Year Award, the highest honour accorded to an alumnus, recognises the distinguished national or international achievements of its recipient. The award was presented to Vian Chinner, chief executive officer at Xineoh, a performance marketing company he founded in 2014. The company, based in Bloemfontein, with offices in Cape Town, Oregon in the US, and Vancouver in Canada, specialises in applying mathematical modelling and machine learning to optimise conversion in industries including real estate, mortgage banking and e-commerce. It has generated more than $30 million in revenue for its clients.

The Young Alumnus of the Year Award acknowledges the achievements of alumni who graduated within the past decade and was presented to Leah Molatseli, founder and managing director of Lenoma Legal, who graduated with an LLB at UFS in 2010.

The Cum Laude Award is bestowed upon an alumnus in recognition of excellence in any field, whether vocational or voluntary. The awards in this category were presented to three alumni:

David Abbey, Acquisition and Leveraged Finance Deal Maker at Rand Merchant Bank. David graduated with a BCom Accounting (RU) 2007 and a BCom Hons Accounting (UFS) in 2008.

Johan Eksteen, Agricon Pelleting, graduated with an MSc in Sustainable Agriculture in 1998, and received an MBA in 2005, both at the UFS.

Zola Valashiya, Co-founder and director: Debate Afrika and Schools Projects and Campaigns Manager at Corruption Watch. He graduated with an LLB (UFS) in 2014, and Masters of Public Administration (Central European University, Hungary) in 2016. He is a Mandela Rhodes Scholar (2015) and a Young African Leadership Initiative Mandela Washington Fellow (2017) and is presently featured on the Mail & Guardian list of top 200 young South Africans.

The Executive Management Award: this service award is presented to an individual who has delivered exceptional service to the UFS and is not limited to alumni of the institution, current students and the community at large. The award was presented to Sarina Cronje, Head of Athletics at KovsieSport.

She graduated with a Bachelor of Science (UFS) in 1977 and a Postgraduate Diploma in Higher Education (UFS) in 1983. She is a mother and career woman, whose family carries the same passion and drive for sports that champions are made of.

The Kovsie Ambassador Award is bestowed upon a current student whose achievements have brought him/her distinction, benefited his/her community, and brought credit to the UFS.

Crystal-Donna Roberts graduated with a BA Drama and Theatre Arts (UFS) in 2005. She is an active television, theatre and film actress who has appeared in a multitude of theatre productions in addition to starring in Afrikaans soap opera “7de Laan, Getroud Met Rugby, Montana” and “Vallei van Sluiers” in which she won public favour. She is currently playing the lead role in the internationally acclaimed film, “Krotoa” which has won numerous awards including Best Film at the Harlem International Film Festival in New York. It also won the Award of Excellence at the International Film Festival for Women: Social Issues and Zero Discrimination, and many more.

Franco Smith, Director: Free State Rugby and Assistant Coach: Springboks. He graduated with a BA Human Movement Sciences (UFS) in 1996 and began his career in rugby in 1999 when he was selected for the Free State Under-18 Craven Week team. He became a regular on the Free State Under-20 and the UFS Shimlas teams prior to his Free State Cheetahs debut in 1992. Franco was reappointed backline coach of the Cheetahs and head coach of the Shimlas in 2015. With many accolades to his name an illustrious career in coaching and management over the years, the name Franco Smith should not be foreign to true rugby connoisseurs.

The Rector and Vice-Chancellor, Prof Francis Petersen, congratulated all the award recipients: “I applaud all alumni; you have made the city of Bloemfontein and the whole province proud.” The National Executive Alumni Chairperson, Dr Pieter du Toit, congratulated the award recipients and thanked the leadership of the university as well as the event organisers.

The awards signify the great esteem with which the UFS holds its alumni and the community that helps to drive its vision, cherish its history and pave the way for more outstanding Kovsies of the future.

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