Latest News Archive

Please select Category, Year, and then Month to display items
Previous Archive
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

DF Malherbe Memorial Lecture
2005-05-19

DF Malherbe Memorial Lecture: Language and language activism in a time of transformation (summary)
Proff Hennie van Coller and Jaap Steyn

Language activism necessary for multilingualism
The awareness is growing that language activism will be needed to bring about a truly democratic multi-lingual society. What is quite clear is that a firm resolve must continuously resist the concentrated pressure on Afrikaans-medium schools (and universities) to allow themselves to be anglicised through becoming first parallel medium, then dual medium, and finally English medium institutions.

Proff Hennie van Coller and Jaap Steyn said this last night (Wednesday night) in the 24th DF Malherbe Memorial Lecture at the University of the Free State. Prof van Coller is head of the Department Afrikaans, Dutch, German and French at the UFS. Both are widely honoured for their contributions to Afrikaans and the promotion of Afrikaans.

They discussed three periods of transformation since 1902, and said about the current phase, which started in 1994:  “Besides all institutions and councils having to be representative of South Africa’s racial composition, places of education were required to open their doors. Quite rapidly this policy has had the result that schools and universities may be solely English medium, but not solely Afrikaans medium. Afrikaans medium institutions — if they claim the right to remain Afrikaans — are quickly branded racist, even though their student body may include all races.

“Education departments are presently exerting great pressure on Afrikaans medium schools to become double or parallel medium schools.  Parallel medium education is an equitable solution provided it can be sustained. Established parallel medium schools, such as Grey College in Bloemfontein, have catered even-handedly for English and Afrikaans speakers for decades. But the situation is different in the parallel medium (and still worse in the double medium) schools that spring up usually at the behest of a department of education.

“Afrikaans schools are converted almost over-night into parallel or dual medium schools without any additional personnel being provided. Depending on the social environment, a parallel medium school becomes reconstituted as a dual medium school on average in five to eight years, and dual medium school becomes an English-only school in two to three years. Some Afrikaans medium schools have become English medium in just three years.

“Though the Constitution recognises mono-lingual schools, officials in the provinces insist that Afrikaans schools become dual or parallel medium; English medium schools are left undisturbed. One must conclude that the tacit aim of the state is English as the sole official language, despite the lip-service paid to multi-lingualism, and the optimistic references to post-apartheid South Africa as a ‘rainbow’ nation.”

They said a recent study has shown that the 1 396 Afrikaans schools in the six provinces in 1993 have dwindled to 844. The fall off in the Free State is from 153 to 97; in the Western Cape from 759 to 564; in Gauteng from 274 to 155; in Mapumalanga from 90 to 3; in the North West from 82 to 13; and in Limpopo Province from 38 to 12.

They said the changes at universities, too, have been severe, as university staffs well know. Ten years ago there were five Afrikaans universities. Today there are none. The government demanded that all universities be open to all, which has meant that all universities have had to become English medium. And no additional funding was forthcoming for the changes. The government policy amounts to a language “tax” imposed on the Afrikaans community for using Afrikaans.

“Only when all schools (and universities) are English will the clamor cease. Academics and educationists are beginning to speak openly of forming pressure groups to save Afrikaans schools, and of using litigation as one of their methods. 59% of Afrikaans parents have said they would support strong action if Afrikaans were no longer a medium of instruction at schools.”

 

 


 

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept