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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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Johann Naudé talks at first Beyers Naudé lecture for 2012

2012-08-02

At the event were, from the left: Ms Bontle Senne, Managing Director for the PUKU Children’s Literature Foundation, Mr Sipho Hlongwane, writer and columnist for the Daily Maverick, Prof. Nicky Morgan, Vice-Rector: Operations at the UFS, Mr Themba Mola, Chief Operations Officer at Kagiso Trust, Mr Johann Naudé, son of Dr Beyers Naudé, and Dr Choice Makhetha, Vice-Rector: External Relations.
Photo: Stephen Collett
2 August 2012

The University of the Free State (UFS) together withKagiso Trust, presented the first Beyers Naudé lecture for 2012 on its South Campus in Bloemfontein last week. Speakers like Dr Wilmot James, Member of Parliament, Mr Johann Naudé, son of Dr Beyers Naudé, Mr Sipho Hlongwane, writer and columnist for the Daily Maverick and Ms Bontle Senne, Managing Director for the PUKU Children’s Literature Foundation, all gave a lecture around this year’s theme: Collaborative partnerships for social cohesion: Building a nation with ethics.

Dr Beyers Naudé played a major role in the formation of Kagiso Trust. His contribution to the trust and the fight against oppression in South Africa, as well as his challenging of the establishment from which he came, makes him one of South Africa’s courageous heroes. Kagiso Trust thus saw it fit to celebrate the life of this clerical activist through a Memorial Lecture The Beyers Naudé Memorial Lecture is an effort by the Trust to engage South Africans into a dialogue about issues affecting our nation.

Mr Johann Naudé talked about the lessons they as children learnt from their parents as well as his father’s decision to respond to the needs of the people in South Africa. Even before the Sharpeville Massacre, Dr Naudé began a self-transformation that led to his rejection of apartheid. “Apartheid had no theological or scriptural grounds and my father decided to resign from the church. After that, he started to talk openly against apartheid and he also paid the price for that. For seven years he was under house arrest and we as his children also felt the effect of his decision. At the University of Pretoria in a residence where I stayed as a student I was called in and told that I would be treated as an outcast. Loans and jobs were also closed for us as children and as a result, we all started our own businesses,” Mr Naudé said.

“Furthermore, our parents taught us to believe in ourselves. He also said we have rights and we can only demand those rights if we take the responsibility that goes with it. My father also taught us to honour and to respect our fellow men, elderly people and the culture of people different from us. We were also taught to apologise for the wrongs to our fellow men and to acknowledge earnestly that we were wrong.”

Dr Wilmot James said that there were two things consistent in the life of Dr Beyers Naudé, namely justice and fairness. “There are many Nelson Mandelas and Beyers Naudés out there. It is the responsibility of political parties and institutions to motivate such leadership. We must ask ourselves: Are my actions and decisions ethical and will they have fair consequences?” Dr James said.

Mr Hlongwane focused his presentation on the ethics part of the theme. He said: “We in South Africa fall very short of ethics. We can start by respecting each other and taking care of one another. The Constitution will not mean a thing if we fail to respect and trust one another. We will have no cohesive society if we continue to treat those different from us like dirt. It is also our ethical duty to build up the disadvantaged.

In her discussion, Ms Senne emphasised the role of the youth in South Africa. “Our youth is failing our state because our state is failing our youth. Their role is to bring cohesion and acts of courageousness to the table. For them to contribute in a practical and sustainable manner, they need to start making the changes they want to see in society. They are young people and they can make it work because they do have access to the necessary means (social networks) to get things done. They must get involved,” she said.

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