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29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett
Prof Bradley
Prof Bradley Smith tackles the ambiguities surrounding trust misuse during divorce proceedings.

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

Traffic in translation between French and Afrikaans follows unique direction
2017-11-21

 Description: Traffic in translation between French and Afrikaans  Tags: Traffic in translation between French and Afrikaans

At Prof Naòmi Morgan’s inaugural lecture were, from the left:
Profs Corli Witthuhn, Vice-Rector: Research; Morgan;
Heidi Hudson, Acting Dean of the Faculty of the Humanities;
and Angelique van Niekerk, Head of the Department of Afrikaans
and Dutch, German and French.
Photo: Stephen Collett

Translation is normally done from a so-called weaker language into a mightier one. This is one of the ways, according to author Antjie Krog in her book A Change of Tongue, which is used by a ‘weaker’ language to help it survive.

However, according to Prof Naòmi Morgan, Head of French in the Department of Afrikaans and Dutch, German and French at the University of the Free State (UFS), this is not the case with French, which is the mightier language, and Afrikaans.

Influence of translators on Afrikaans

“The number of translated titles from French into Afrikaans, from ‘great’ into ‘lesser’ language, is far more than the other way round, almost as if the translators wanted to make the Afrikaans-speaking readers literary self-sufficient, but did not feel the same need to extend the Afrikaans literature into other languages.”

This was Prof Morgan’s words on 8 November 2017 during her inaugural lecture entitled, Van Frans na Afrikaans: 100 jaar van byna eenrigting-vertaalverkeer, in the Equitas Auditorium on the Bloemfontein Campus. A PowerPoint presentation, with a symbolic background of the South African and French flags and relevant texts, formed part of her lecture. She also played video clips and pieces of music to complement it.

Among others, she has a doctorate in Modern French Literature from the University of Geneva, and her translations have earned her a French Knighthood and various prizes. She is also well-known for her translations and involvement in dramas such as Oskar en die Pienk Tannie and Monsieur Ibrahim en die blomme van die Koran.

Greater challenges in this direction

In her lecture, she looked at the two-way traffic from French into Afrikaans and from Afrikaans into French.

Three French citizens, Pierre-Marie Finkelstein, Georges Lory, and Donald Moerdijk, have translated from Afrikaans into French. Of course, their background and ties with South Africa also had an influence on their work. “In Moerdijk’s case, translation from Afrikaans, his second language, was a way in which to recall the country he left in his mind’s eye,” she said.

Prof Morgan is one of only two translators who translates works from Afrikaans into French, the other being Catherine du Toit. However, translations in this direction pose greater challenges. She said it involves “not only knowledge of the language, but also knowledge of the French target culture and literature”. In addition, there aren’t any good bilingual dictionaries, and the only Afrikaans-French dictionary is a thin volume by B Strelen and HL Gonin dating from 1950.

Prof Morgan still believes in translation

She believes there is a need to hear foreign languages such as French in the form of music in Afrikaans, and the speaking of a language alone might not be enough to ensure its survival. 

She still believes in translation, and quoted Salman Rushdie’s Imaginary homelands: essays and criticism 1981-1991 in this respect: “The word ‘translation’ comes, etymologically, from the Latin for ‘bearing across’. Having been borne across the world, we are translated men. It is normally supposed that something always gets lost in translation; I cling, obstinately to the notion that something can also be gained.”

Click here for Prof Morgan’s full lecture (only available in Afrikaans).

 

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