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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

Teachers should deal with diversity in education - Prof. Francis
2010-10-08

At the occasion were, from the left: Prof. Jonathan Jansen, Rector and Vice-Chancellor of the University of the Free State (UFS); Prof. Francis; and Prof. Driekie Hay, Vice-Rector: Teaching and Learning at the UFS.
Photo: Jaco van der Merwe

Prof. Dennis Francis, the Dean of the Faculty of Education at the University of the Free State (UFS), recently delivered his inaugural lecture on Troubling Diversity in South African Education on the Main Campus in Bloemfontein.

He urged teachers to be open to what “diversity” might mean in a particular context and how diversity relates to either inclusion or exclusion.

“An approach that promotes the inclusion of all must be based on an understanding of how exclusion operates in ways that may have typical patterns of oppression, but differ in the specific ways that exclusion is expressed and becomes normalised in that context,” he said.

“The good teacher thus seeks to understand how these forms of exclusion may develop in the school’s context and respond through taking thoughtful action to challenge them. It may require creating a climate that enables the silent to speak and recognising that not all groups communicate in exactly the same ways.”

He said teachers also had to affirm the experiential base of learners and students. He said there was an assumption that students would be more effective practitioners if their own experience were validated and explored.

“It is crucial that the students’ own history is treated as valuable and is a critical part of the data that are reflected,” he said. “Equally important is that such stories and similar activities are intentionally processed to enable students to make the connections between personal experience and relevant theory.”

He also urged them to challenge the ways in which knowledge had been framed through oppression.

“Schools are often characterised by messages that draw on one or another form of oppression. Thus, expectations are subtly or in some cases unsubtly communicated, e.g. that girls are not good at physics, or that, while white learners are strong in abstract thought, African learners have untapped creativity, and so on,” he continued.

“For someone to integrate into their role as educators a commitment against oppression means confronting obstacles that one may previously have shied away from, such as challenging authority, naming privilege, emphasising the power relations that exist between social groups, listening to people one has previously ignored, and risking being seen as deviant, troublesome or unpopular.”

Furthermore, Prof. Francis said dealing with diversity in education was always affectively loaded for both students and teachers. He said in South Africa one injunction from educators was to be “sensitive” and thus avoid risking engagement with the contentious issues around imbalances of power.

“If both students and teachers are to confront issues of oppression and power in any meaningful way, we need to design more purposely for the difficulties they will encounter, for example, creating a classroom environment that promotes safety and trust so that all students are able to confront and deal with prejudice and discrimination. Classroom environments will need to balance the affective and cognitive in addressing issues of diversity and social justice,” he added.

He also said that teachers should recognise the need to complement changing attitudes with attempts to change the structural aspects of oppressions.

“To prevent superficial commitments to change, it is important for students to explore barriers that prevent them from confronting oppressive attitudes and behaviours. In this way students are able to learn and see the structural aspects of oppression,” he said.

“Equally important, however, is to get students to examine the benefits associated with challenging oppression. A fair amount of time must therefore be spent on developing strategies with students which they will be able to use practically in challenging oppression.”

He also advised educators to affirm the capacity of staff and learners to act and learn in ways that do not replicate patterns of oppression.

“Many South African schools have survived both the harsh repression of apartheid and the continuing legacy of oppression of various kinds. Despite that, we are often as educators made aware of the ways in which young people in particular affirm themselves and each other in creative and confident ways,” he concluded.

Media Release
Issued by: Lacea Loader
Director: Strategic Communication (acg)
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl@ufs.ac.za  
7 October 2010
 

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