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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

Moshoeshoe film screened at UFS as part of transformation programme
2004-10-14

A ground-breaking documentary film on the life and legacy of King Moshoeshoe I, the founder of the Basotho nation, will be screened at the University of the Free State (UFS) tonight (Wednesday 13 October 2004) at 19:00.

Rector and Vice-Chancellor of the UFS, prof. Frederick Fourie, said the UFS commissioned the documentary as a practical demonstration of the university’s commitment to the continued transformation of the campus and the creation of a new inclusive institutional culture for all staff and students.

It is part of a larger UFS project to honour the Moshoeshoe legacy of nation-building and reconciliation and to explore his role as a model of African leadership.

The documentary tells the life story of the legendary king, with emphasis on his remarkable leadership skills, his extraordinary talent for diplomacy and conflict resolution and his visionary commitment to creating a new nation from a fragmented society.

Almost all the filming was done on or around Moshoeshoe’s mountain stronghold, Thaba Bosiu.

The last part of the documentary explores the lessons for African leadership to be learnt from Moshoeshoe. The hour-long documentary film was produced by the well-known journalist Mr Max du Preez and was commissioned by the UFS as part of its centenary celebrations.

“Through this documentary film about King Moshoeshoe, the UFS commits itself to developing a shared appreciation of the history of this country,” said prof. Fourie.

“King Moshoeshoe was a great African statesman and leader. He was born in this region of the country, but his influence and legacy extends way beyond the borders of the Free State, Lesotho and even way beyond the borders of South Africa,” said prof. Fourie.

As part of the larger project, the UFS is investigating a possible annual Moshoeshoe memorial lecture that will focus on African leadership, nation-building and reconciliation, possible PhD-level research into the life and legacy of King Moshoeshoe and a literary anthology including prose and poetry.

“We must gain a deeper understanding of what really happened during his reign as king. Therefore the University of the Free State will encourage and support further research into the history, politics and sociology of the Moshoeshoe period, including his leadership style,” said prof. Fourie.

According to prof. Fourie the Moshoeshoe project will enable the UFS to give real meaning to respect for the diversity of our languages and cultures, and the unity South Africans seek to build as a democratic nation through such diversity.

According to the producer of the documentary, journalist Mr Max du Preez, the UFS deserves credit for recognising this extraordinary man and for financing this important documentary.

Du Preez said: “It was about time that South Africa rediscovered Moshoeshoe. Colonialist and Afrikaner Nationalist historians have painted him as a sly, untrustworthy and weak leader. Most historians have preferred to glorify leaders in South Africa’s past who were aggressors and conquerors. In the process most present-day South Africans came to regard Moshoeshoe as a minor tribal figure.”

“Yet this was the man who broke the cycle of violence, famine and suffering during the traumatic time in central South Africa in the early 1800s. During the entire 19th century, Moshoeshoe was virtually the only leader in South Africa who did not answer violence with violence, who did not set forth to conquer other groups and expand his land,” said Mr du Preez.

“I have no doubt that the stability that the Free State region has enjoyed over more than a century was largely due to Moshoeshoe’s leadership and vision. He can quite rightly be called “The Nelson Mandela of the 19th Century,” Mr du Preez added.

Explaining the title of the documentary film, Mr du Preez said: “We decided to call the documentary “The Reniassance King” because whichever way one looks at it, Moshoeshoe symbolised everything behind the concept of an African Renaissance.”

“He was progressive, just and fair; he deeply respected human life and dignity (we would nowadays call it human rights); he embraced modernity and technology without ever undermining his own people’s culture or natural wisdom; he never allowed European or Western influence to overwhelm him, make him insecure or take away his pride as an African,” said Mr du Preez.

“Moshoeshoe was the best of Africa. If only contemporary African leaders would follow his example of what African leadership should be,” Mr du Preez said.

Among the interviewees in the film were Lesotho’s most prominent historian, Dr LBBJ Machobane, the head of the UFS’s Department of History, prof. Leo Barnard, Moshoeshoe expert and Gauteng educationist Dr Peter Seboni, Lesotho author and historian Martin Lelimo and Chief Seeiso Bereng Seeiso, Principal Chief of Matsieng and direct descendant of the first King of the Basotho.

The documentary film on King Moshoeshoe will be screened on SABC 2 on Thursday 4 November 2004.
 

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