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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 Oprah Winfrey praises our university

2011-08-24

Dr Oprah Winfrey after receiving her honorary doctorate degree.
Photo: Rian Horn

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Transcription (pdf document)

“I came 8 000 miles to say, thank you, Vrystaat!” and “God bless South Africa,” were the words Dr Oprah Winfrey used yesterday to respectively open and close her address to an overflowing Callie Human Centre on our Bloemfontein Campus.

Our university awarded an honorary doctorate in Education to Dr Winfrey during a stately, yet warm and cheerful affair yesterday, which saw the 4 500 seater Callie Human Centre packed to the rafters with adoring fans, staff members and students.

The honorary doctorate is in recognition of her unparalleled dedication to improving the lives and futures of so many by improving education and ensuring that it is accessible to all. Through her award-winning show, The Oprah Winfrey Show (which concluded this year after 25 years of entertainment and service), and the various charity organisations she has established, Dr Winfrey has harnessed the power of her iconic stature in the struggle to eradicate poverty and make education accessible to all.

The ceremony’s audience was entertained by South African music legend, Ms Sibongile Khumalo, the Bloemfontein Children’s Choir, Bartimea School for the Deaf and Blind’s Sign Language Choir, and several other musical performers as well as dancers.

Dr Winfrey could not hold back her tears when Mr John Samuel, interim Director of our International Institute for Studies in Race, Reconciliation and Social Justice, described her as an “honorary daughter of South Africa”. She proved just how much the country means to her when she joined in the singing of the South African national anthem, Nkosi Sikeleli, despite struggling with the words in some parts.

According to Dr Winfrey, her interest in our university began after she had read an article by Prof. Jonathan Jansen, Vice-Chancellor and Rector, in which he emphasised the need for South Africans to stop accepting mediocrity, if ever the country is to develop to its full potential.

She asked Mr Samuel to convey her message of support to Prof. Jansen and the wheels, which led to today’s great event, were set in motion.

She also expressed her admiration of the transformation process at our university and our commitment to “reconciliation, peace and harmony”. “What has happened at the University of the Free State is nothing short of a miracle and this is truly what the New South Africa is about,” she said to loud cheers from the audience.

To emphasise her point, she called the five workers from the Reitz video to the stage and used their forgiveness and acceptance of the students responsible for the video as an example of the healing achieved at the UFS.

“Having seen this forgiveness has allowed me to expand my vision of what we can be.” She also delivered a message of encouragement and reminded students that anyone, despite their circumstances and background, could become successful and grow to overcome their obstacles, as she had done.

“Anyone can be successful if they put their mind to it, work hard and are diligent,” she said. “We must all strive for more than success, though, and fulfil the highest expression of ourselves as humans by realising who you are and what you are meant to be.”

Following her address, Dr Winfrey answered several questions from our students, giving them advice on, among other things, how to choose a career that is right for them, and good characteristics to look for in leaders and peers.

She also mentioned that several learners from the Oprah Winfrey Leadership Academy, which has its very first group of Grade 12 learners this year, would be visiting our university next month in order to help them select a university to attend next year.

Media Release
25 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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