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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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Premiere of the documentary on King Moshoeshoe - Address by the Rector

2004-10-14

Address by the rector and vice-chancellor of the University of the Free State, prof Frederick Fourie, at the premiere of the documentary on King Moshoeshoe, Wednesday 13 October 2004

It is indeed a privilege to welcome you at this key event in the Centenary celebrations of the University of the Free State.

We are simultaneously celebrating 100 years of scholarship with 10 years of democracy

Today is a very important day with great significance for the University. This Centenary is not merely a celebration of an institution of a certain age. It is a key event in this particular phase of our history, in our transformation as an institution of higher learning, in taking the creation of a high-quality, equitable, non-racial, non-sexist, multicultural and multilingual university seriously.

This is about building something new out of the old, of creating new institutional cultures and values from diverse traditions.

It is about learning together - as an higher education institution - about who we are where we come from – to decide where we are going.

It is about merging the age-old tradition of the university, of the academic gown, with the Basotho blanket, the symbol of community engagement.

Then why is it important that we remember Moshoeshoe, where does he fit into our history?

In the Free State province, where large numbers of Basotho and Afrikaners (and others) now live together, a new post-apartheid society is being built in the 21st century.

The challenge is similar to that faced by Moshoeshoe 150 years ago. As you will see tonight, he did a remarkable thing in forging a new nation out of a fragmented society. He also created a remarkable spirit of reconciliation and a remarkable style of leadership.

Not all people in South Africa know the history of Moshoeshoe. Many Basotho – but not all – are well versed in the history of Moshoeshoe, and his name is honoured in many a street, town and township. Many white people know very little of him, or have a very constrained or even biased view of his role and legacy. In Africa and the world, he his much less known than, for instance, Shaka. (In Lesotho, obviously, he is widely recognised and praised.)

We already benefit from his legacy: the people of the Free State share a tradition of moderation and reconciliation rather than one of aggression and domination.

With Moshoeshoe, together with Afrikaner leaders and reconciliators such as President MT Steyn and Christiaan de Wet, we have much to be thankful for.

Our challenge is take this legacy further: to forge a new society in which different cultural, language and racial groups – Basotho, Afrikaners and others – will all feel truly at home.

Bit by bit, on school grounds, on university campuses, in each town and city, people must shape the values and principles that will mould this new non-racial, multicultural and multilingual society.

A shared sense of history, shared stories and shared heroes are important elements in such a process.

Through this documentary film about King Moshoeshoe, the UFS commits itself to developing a shared appreciation of the history of this country and to the establishment of the Free State Province as a model of reconciliation and nation-building.

Moshoeshoe is also a strong common element, and binding factor, in the relationship between South Africa / the Free State, and its neighbour, Lesotho.

For the University of the Free State this also is an integral part of real transformation – of creating a new unity amidst our diversity.

Transformation has so many aspects: whilst the composition of our student and staff populations have been changing, many other things change at the same time: new curricula, new research, new community service learning projects.

In also includes creation of new values, new (shared) histories, new (shared) heroes.

It includes the incorporation of the Qwaqwa campus, which serves a region where so many of the children of Moshoeshoe live, including her majesty Queen Mopeli.

We see in Moshoeshoe a model of African leadership – of reconciliation and nation-building – that can have a significant impact in South Africa and Africa as a whole.

We also find in the legacy of King Moshoeshoe the possibility of an “founding philosophy”, or “defining philosophy”, for the African renaissance.

To develop this philosophy, we must gain a deeper understanding of what really happened there, of his role, of his leadership.

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.

We hope to do this in partnership with National University of Lesotho.

The Moshoeshoe documentary is one element of a long-term project of the UFS. The other elements of the project that we are investigating are possible PhD-level research; a possible annual Moshoeshoe memorial lecture on African leadership; and then possible schools projects and other ways and symbols of honouring him.

It is my sincere wish that all communities of the Free State and of South Africa will be able to identify with the central themes of this documentary, and develop a shared appreciation for leaders such as King Moshoeshoe and the legacy of peace, reconciliation and nation-building that they have left us.

Prof. Frederick Fourie
Rector and Vice-Chancellor
University of the Free State
13 October 2004.

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