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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

Publication on indigenous knowledge systems

2005-10-21

Dr Otsile Ntsoane (acting Director: IKS, Department of Science and Technology) and Prof Philip Nel (Director: Africa Studies at the UFS and guest editor of the publication) at the launch of the publication

UFS launches most comprehensive publication on indigenous knowledge systems
A unique collection of essays on Indigenous Knowledge Systems (IKS) was launched yesterday (20 October 2005) by the University of the Free State’s (UFS) Programme of Africa Studies.

The essays are published as a special edition of INDILINGA, the African Journal for Indigenous Knowledge Systems and is an outcome of the colloquium on Indigenous Knowledge Systems that was presented last year by the UFS Director of Africa Studies in cooperation with the National Research Council.

“The amount and diversity of materials on IKS brought together under one cover is unique as there are no other South African publications of this magnitude on this issue. It contains papers of international experts on IKS such as Prof Fritz Wallner from Austria and Prof Gayatri Spivak, foremost postcolonial theorist from India,” said Prof Philip Nel, Director of Africa Studies and guest editor of the publication.

“The publication is a rich source field for students and scholars to exploit because most of the sources quoted in the articles are recent, fresh and relevant. The contributors are largely people responsible for managing, fostering and studying IKS in a responsible manner,” said Prof Nel.

“An added value of the publication is the inclusion of the policy document on IKS that was adopted by Cabinet in November 2004,” said Prof Nel.

“Millions of people in South Africa are faced with the painful choice of abandoning their heritage. In this choice, the study and management of IKS has a major role to play; on the one hand, to encourage as much assimilation of traditional knowledge as possible into the modern systems, and on the other hand to provide a “language” and a “grammar” for indigenous people through which they can access modernity,” said Prof Nel.

The IKS debate involves questions of African identity, protection of indigenous communities and practices, political aspects as well as the scientific integrity of the enterprise.

The publication displays the range of burning questions that have to be resolved in this field such as mainstreaming IKS in academic debate and practice, recognition and protection of the knowledge holders, bio-prospecting and bio-piracy, bio and ethnic healing, lack of textbooks and field manuals, etc and will prove worthwhile for future researchers.

“One of the main reasons for publishing this volume is the fact that IKS should be studied not only to provide a sense of pride in the past, or to engender respect for indigenous peoples, but also to enable people in indigenous mind sets to make a better transition into the world of science and technology,” said Prof Nel.

The guest speaker at the launch was Dr Otsile Ntsoane, acting Director of IKS at the Department of Science and Technology. In his speech Dr Ntsoane stressed the symbolic and concrete value of the publication. “The publication can have a great social impact and the research results can contribute to chancing the economic landscape of South Africa,” he said.

The publication can be purchased at R150 per copy. For more information, Ms Steffi Cawood, Programme Coordinator for Africa Studies at the UFS can be contacted at (051) 401-2614.

Media release
Issued by:Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
21 October 2005

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