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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.

News Archive

Ms Oprah Winfrey to receive an honorary doctorate in Education from our university

2011-06-10

Ms Oprah Winfrey

Invitation to the public (PDF document)

Invitation to UFS staff and students (PDF document)

Media accreditation (PDF document)

Street closures on 23 and 24 June 2011 (Bloemfontein Campus)

Map from the Bloemfontein Airport to the UFS (PDF document)

Map of the UFS (PDF document)

For more information, please contact:
Tel: 051 401 3000
E-mail: info@ufs.ac.za

Staff and students from our Qwaqwa Campus, please contact:
Dr Elias Malete's office

Our university will be awarding an honorary doctorate in Education to the global media icon, philanthropist and public educator, Ms Oprah Winfrey, on its Bloemfontein Campus on Friday, 24 June 2011.

Both the Council and Senate of our university gave strong support to awarding the honorary doctorate to Ms Winfrey.

By awarding the honorary doctorate, we want to recognise Ms Winfrey’s accomplishments and unparalleled work as a global media leader, as well as a philanthropist with vision and foresight in the field of education and development.

“It is a great privilege for us to be the first South African university to honour Ms Winfrey in this way and to be able to recognise a global icon of her stature,” says Prof. Jonathan Jansen, Vice-Chancellor and Rector of our university.

Ms Winfrey already holds honorary doctorates from Princeton University as well as Duke University in the United States, among others.

Reaching millions of viewers in more than 150 countries with her award-winning programme, “The Oprah Winfrey Show,” she has brought genuine change into the lives of ordinary people during its 25-year run.

Capitalising on the power of the media and her standing as a global icon, Ms Oprah Winfrey has brought a range of critical social and educational matters to the attention of her viewers. In 2000, she expanded her media reach through the successful creation of O, The Oprah Magazine, which then debuted in South Africa in 2002. Earlier this year, she extended her media influence through the launch of a US cable channel, OWN: Oprah Winfrey Network.

Her Book Club has had a dramatic and profound impact on the reading habits of America and those of people in other parts of the world, while her public charity, Oprah’s Angel Network, collected approximately $80 million over a period of twelve years in aid of building schools, women’s shelters and youth centres across the globe.

Through her private charity, The Oprah Winfrey Foundation, hundreds of grants have been awarded in support of empowering women, children and families, and The Oprah Winfrey Scholars Program, supports hundreds of university students, in the United States and elsewhere, who are committed to giving back and making a difference in their communities and country.

During a December 2000 visit to former president Nelson Mandela, Ms Winfrey pledged to build a school for girls in South Africa. This gift was to become the Oprah Winfrey Leadership Academy for Girls, which opened in 2007.

The Academy embodies her strong belief in the power of education to change the future. The Academy provides a unique educational opportunity to over 400 young girls, in Grades 7 through 12, from all over South Africa. These young women come from small rural towns and the big cities, but they share a common background in that they all come from poor families.

Ms Winfrey believes that the Academy can contribute to the development of a new generation of women leaders, deeply imbued with a sense of public service. The Academy stands as a beacon of hope in the educational landscape of this country.

More recently, Ms Winfrey has turned her attention to the failing public-school system in the United States and has brought the impact thereof on the lives of many people in America to the attention of the American public and policy-makers. Even more profoundly, she has highlighted how poor education entrenches poverty and social exclusion. In this sense, Ms Winfrey demonstrates the interconnection between education struggles in the USA and South Africa in powerful ways.

Both the Interim Director of our university’s International Institute for Studies in Race, Reconciliation and Social Justice, Mr John Samuel, and Prof. Jansen have worked for and with Ms Winfrey on matters of education at her school in Johannesburg, and in South Africa more broadly.

The South African public is invited to share in this occasion, and attend the award ceremony. A limited number of tickets will be available to the public from Wednesday, 15 June 2011 to Wednesday, 22 June 2011, and can be purchased from Computicket at an administrative cost of R10 a ticket.

Media Release
11 June 2011
Issued by: Lacea Loader
Director: Strategic Communication
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: news@ufs.ac.za

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