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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 challenged to fulfil their leadership obligations

2017-12-08

Photo: Johan Roux

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A total number of 1 226 qualifications, including diplomas, certificates, and degrees, were conferred during the two days of the 2017 End-of-Year Graduation Ceremony which took place on the Bloemfontein Campus of the University of the Free State (UFS). Forty doctorates and 109 master’s degrees were awarded. Most doctorates (19) were awarded in the Faculty of Natural and Agricultural Sciences which also conferred the biggest number of master’s degrees (27).

Celebrating excellence
Some of the highlights at this year’s graduation ceremonies were when the university honoured Prof Paul Holloway and Marius Botha with honorary doctorates and Joyene Isaacs with the Chancellor’s Medal.

Isaacs, Head of the Department of Agriculture in the Western Cape, who was nominated by the Centre for Sustainable Agriculture in the Faculty of Natural and Agricultural Sciences for the Chancellor’s Medal, said: “Agriculture is one of those areas people take for granted. With this medal, agriculture can come to the fore. Agriculture is placed in the spotlight and it is important for this country, but also globally, because we look after the food supply. For me agriculture has been a sustainable livelihood but also a career. Everything about agriculture excites me! I hope that through this award I can take agriculture to the next level.”

Prof Holloway, internationally acclaimed expert in the science and technology of surfaces, thin films, and nanoparticles, who received the Honorary Doctorate in Science degree, said: “This award recognises the efforts we (the UFS and the University of Florida in the US) have jointly developed. We introduced the UFS to phosphors and today it (the UFS) has world-wide recognition expertise in this field. We also learnt from them. They brought us technology we did not have before. It was a mutual growth technique and we all benefit from that. If you work together you can achieve remarkable things.”

“It is the greatest honour of my life. I’ve been associated with the UFS for 17 years in the capacity of moderator, examiner and sometimes lecturer.” These were the words of Botha, author and expert in the financial planning circles of South Africa who was nominated for an honorary degree by the School of Financial Planning Law.

Botha told graduates that a qualification in the financial planning field would give you many opportunities. “If you enter almost any financial services organisation in South Africa, you will find senior people there that completed the postgraduate diploma in Financial Planning Law at the UFS,” he said.

During a luncheon that was hosted by Prof Francis Petersen, the UFS Rector and Vice-Chancellor, in honour of these esteemed graduates, he thanked them for the contribution they had made, not only for the UFS, but for advancing science, technology, and the better of society. “The Honorary degrees and Chancellor’s Medal are the highest accolades and recognition that the university can bestow on individuals who have excelled in science or scholarship or have contributed to service to this country. You are exemplary individuals and you make the UFS, our country and the world proud,” he said.

Photo: Johan Roux

Inspiration for the future
Likeleli Monyamane, a UFS Council member, addressed graduates during the morning ceremony on 6 December 2017. She motivated graduates to walk tall and learn to serve our country. “Finding your voice comes with a responsibility to speak for those who do not have a voice,” Monyamane said.

Leah Molatseli, who launched South Africa’s first legal e-commerce website, Lenoma Legal, was the guest speaker at the afternoon session on 6 December 2017. “You are going to start afresh. It is going to feel like you know absolutely nothing and it’s ok. You need to make peace with that in order for you to learn.

“A lot of young people expect instant success when they enter a job. I am 29 and have had three jobs, two side jobs and numerous certificates. But I decided to create my own future. That is what I did with Lenoma Legal. Some people are meant to be ordinary and some extraordinary,” said this young entrepreneur and Kovsie Alumnus.

On the second day of the graduation ceremonies Dr Imtiaz Sooliman, founder and Director of the Gift of the Givers Foundation, challenged the newly graduated alumni to be carriers of hope for Africa. “We need people of skill, spirituality and heart,” he said.

“How do you want others to believe in you if you don’t believe in yourself? We South Africans, we can make things happen. Believe in yourself,” he said.

“The best science you can do is for others. The moment you achieve that, you mean something to someone,” he said.

Prior to dissolving the congregations, Dr Khotso Mokhele, the Chancellor of the UFS, said: “It has taken hard work, commitment, dedication, to walk across the stage. You deserve all of that.”

Interesting facts of the graduation
Among the graduates at these ceremonies was former Miss World 2014, Rolene Strauss. She received a Bachelor of Medicine and Bachelor of Surgery Degree.

The Faculty of Natural and Agricultural Sciences is also very proud of the first group of BAgric students who graduated on the Agricultural College Programme. The eight agriculture students all received the Bachelor of Agriculture degree, majoring in Agricultural Management.

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