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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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Dr Khotso Mokhele joins ranks of distinguished Chancellors

2010-11-21

Attending the inauguration ceremony are, from the left: Mr Pule Makgoe, MEC for Education in the Free State and member of the UFS Council; Judge Ian van der Merwe, Chairperson of the UFS Council; Dr Khotso Mokhele, newly inaugurated Chancellor of the UFS; and Prof. Jonathan Jansen, Vice-Chancellor and Rector of the UFS.
Photo: Dries Myburgh

Dr Khotso Mokhele joined the ranks of distinguished Chancellors of the University of the Free State (UFS) with his inauguration as the new Chancellor of the institution at a ceremony on Friday, 19 November 2010.

The lustrous ceremony took place on the Main Campus in Bloemfontein and was attended by hundreds of guests from all over South Africa.

Dr Mokhele said in his speech: “I am excited to have been invited by the UFS to join its community at the time when it is attempting to reinvent itself into an institution that will be counted amongst those that will shape the local, regional, national will, and by so doing, contribute to the shaping of an African will.”

Dr Mokhele follows in the footsteps of Dr Franklin Sonn, former Ambassador of South Africa in the United States of America and receiver of many awards, acknowledgements, and honorary doctorates, who retired earlier this year. Dr Sonn was preceded by Ms Winkie Direko, former premier of the Free State.

His acceptance of the role of Chancellor is a great honour for the UFS.

According to Prof. Jonathan Jansen, Vice-Chancellor and Rector of the UFS, it is a proud moment to welcome someone from the Province as the Chancellor of this university. With his strong academic values and deep sense of human compassion, Dr Mokhele is one of but a few uncompromising leaders. He is also an inspiring, determined pioneer and a role model to all our students.

Few have done as much to guide the development of science in South Africa since democracy in 1994 as Dr Mokhele. His vision and actions as a senior science manager have been guided by his deep conviction that for a truly democratic society to emerge in South Africa all people must be empowered to be its architects and must have unhindered access to those careers upon which our economy is built.

Dr Khotso Mokhele was born and raised in Bloemfontein. After matriculating from the Moroka High School he went on to study at Fort Hare, where he graduated with a B.Sc. in Agriculture, winning the Massey-Ferguson award for the best student in that field. As a recipient of the prestigious Fulbright-Hays Scholarship, he entered the University of California in Davis where he took a M.Sc. and a Ph.D. degree, both in Microbiology. He was awarded post-doctoral fellowships at the Johns Hopkins University School of Medicine in Baltimore, Maryland, and at the University of Pennsylvania, Philadelphia.

Dr Mokhele returned to South Africa in 1987, set on becoming a top-class academic and researcher. He held lecturing posts at the Universities of Fort Hare (1987-1989) and Cape Town (1990-1992). In 1992 he joined the Foundation for Research Development (FRD) as one of its Vice-Presidents. He succeeded to its presidency in 1996 and then from 1999 to 2006 became the first President of the National Research Foundation (NRF). He successfully merged the FRD and the Centre for Science Development of the Human Sciences Research Council. Under his visionary leadership the NRF has come to play a pivotal role in the development agenda of the country. He was also instrumental in the establishment of the South African Academy of Sciences serving as its founder president (1996-1998).

Dr Khotso Mokhele's contribution to science in South Africa has received wide recognition locally and abroad. He has received nine honorary doctorates. He was made a Chevalier of the Legion of Honour by the President of France in recognition of his personal efforts in strengthening scientific ties between France and South Africa, and was appointed a director of the Salzburg Seminar, an institution focused on global change, and subsequently a member of its Council of Senior Fellows.

He also serves on the boards of major companies such as Implats, Adcock Ingram and Afrox.

Complete speech (Pdf)

Media Release
Issued by: Lacea Loader
Director: Strategic Communication (actg)
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl@ufs.ac.za19 November 2010

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