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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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MBA Programme - Question And Answer Sheet - 27 May 2004

2004-05-27

1. WHAT MUST THE UNIVERSITY OF THE FREE STATE (UFS) DO TO GET FULL ACCREDITATION FOR THE MBA PROGRAMMES?

According to the Council on Higher Education’s (CHE) evaluation, the three MBA programmes of the UFS clearly and significantly contribute to students’ knowledge and skills, are relevant for the workplace, are appropriately resourced and have an appropriate internal and external programme environment. These programmes are the MBA General, the MBA in Health Care Management and the MBA in Entrepreneurship.

What the Council on Higher Education did find, was a few technical and administrative issues that need to be addressed.

This is why the three MBA programmes of the UFS received conditional accreditation – which in itself is a major achievement for the UFS’s School of Management, which was only four years old at the time of the evaluation.

The following breakdown gives one a sense of the mostly administrative nature of the conditions that have to be met before full accreditation is granted by the CHE:

a. A formal forum of stakeholders: The UFS is required to establish a more structured, inclusive process of review of its MBA programmes. This is an administrative formality already in process.

b. A work allocation model: According to the CHE this is required to regulate the workload of the teaching staff, particularly as student numbers grow, rather than via standard management processes as currently done.

c. Contractual agreements with part-time staff: The UFS is required to enter into formal agreements with part-time and contractual staff as all agreements are currently done on an informal and claim-basis. This is an administrative formality already in process.

d. A formal curriculum committee: According to the CHE, the School of Management had realised the need for a structure – other than the current Faculty Board - where all MBA lecturers can deliberate on the MBA programmes, and serve as a channel for faculty input, consultation and decision-making.

e. A system of external moderators: This need was already identified by the UFS and the system is to be implemented as early as July 2004.

f. A compulsory research component: The UFS is required to introduce a research component which will include the development of research skills for the business environment. The UFS management identified this need and has approved such a component - it is to take effect from January 2005. This is an insufficient element lacking in virtually all MBA programmes in South Africa.

g. Support programmes for learners having problems with numeracy: The UFS identified this as a need for academic support among some learners and has already developed such a programme which will be implemented from January 2005.

The majority of these conditions have been satisfied already and few remaining steps will take effect soon. It is for this reason that the UFS is confident that its three MBA programmes will soon receive full accreditation.

2. WHAT ACCREDITATION DOES THE UFS HAVE FOR ITS MBA PROGRAMME?

The UFS’s School of Management received conditional accreditation for its three MBA programmes.

Two levels of accreditation are awarded to tertiary institutions for their MBA programmes, namely full accreditation and conditional accreditation. When a programme does not comply with the minimum requirements regarding a small number of criteria, conditional accreditation is given. This can be rectified during the short or medium term.

3. IS THERE ANYTHING WRONG WITH THE ACADEMIC CORE OF THE UFS’s MBA PROGRAMMES?

No. The UFS is proud of its three MBA programmes’ reputation in the market and the positive feedback it receives from graduandi and their employers.

The MBA programmes of the UFS meet most of the minimum requirements of the evaluation process.

In particular, the key element of ‘teaching and learning’, which relates to the curriculum and content of the MBA programmes, is beyond question. In other words, the core of what is being taught in our MBA programmes is sound.

4. IS THE UFS’s MBA A WORTHWHILE QUALIFICATION?

Yes. Earlier this year, the School of Management – young as it is - was rated by employers as the best smaller business school in South Africa. This was based on a survey conducted by the Professional Management Review and reported in the Sunday Times Business Times, of 25 January 2004.

The UFS is committed to maintaining these high standards of quality, not only through compliance with the requirements of the CHE, but also through implementing its own quality assurance measures.

Another way in which we benchmark the quality of our MBA programmes is through the partnerships we have formed with institutions such as the DePaul University in Chicago and Kansas State University, both in the US, as well as the Robert Schuman University in France.

For this reason the UFS appreciates and supports the work of the CHE and welcomes its specific findings regarding the three MBA programmes.

It is understandable that the MBA review has caused some nervousness – not least among current MBA students throughout the country.

However, one principle that the UFS management is committed to is this: preparing all our students for a world of challenge and change. Without any doubt the MBA programme of the UFS is a solid preparation.

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