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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

Research project gives insight into the world of the deaf

2005-11-30

Mr Akach in conversation (using sign language) with his assistant Ms Emily Matabane. Photo: Lacea Loader

UFS research project gives insight into the world of the deaf

The Sign Language Division of the University of the Free State’s (UFS) Department of Afro-Asiatic Studies and Language Practice and Sign Language has signed a bilateral research project with the universities of Ghent and Brussels to write a book on sign language.

“We want to compare the Belgium and South African sign languages with each other. The book will be about the deaf telling us about themselves and how they live. It will also focus on the use of story telling techniques and the grammar used by deaf people. We want to see if the hand forms and the grammatical markers and other linguistic features that deaf people from these two countries use are the same or not,” said Mr Philemon Akach, lecturer at the UFS Sign Language Division and coordinator of the research.

According to Mr Akach, the sign language community in South Africa, with about 600 000 deaf people who use South African Sign Language (SASL) as first language, is quite big. “Over and above the deaf people in South Africa, there are also the non-deaf who use SASL, like the children of deaf parents etc. This book can therefore be used to teach people about the deaf culture,” he added.

Another of Mr Akach’s achievements is his election as Vice-President of the newly established World Association of Sign Language Interpreters (WASLI). The association was established earlier this month during a conference in Worcester.

Mr Akach has been actively involved with sign language interpretation since 1986 and has been interpreting at the World Congress of the World Federation of the Deaf (WFD) since 1987. “My appointment as Vice-President of the WASLI is an emotional one. I have been involved with deaf people for so long and have been trying to create awareness and obtain recognition for sign language, especially in Africa,” said Mr Akach. WASLI is affiliated to the WFD.

According to Mr Akach there was no formal structure in the world to support sign language and sign language interpreters. “Now we have the backup of WASLI and we can convince governments in other African countries and across the world to support deaf people by supporting WASLI and therefore narrow the communication gap between the deaf and the hearing. My main aim as Vice-President is to endeavour for the recognition of sign language and spoken language interpreters as a profession by governments,” he said.

According to Mr Akach the formal training of interpreters is of vital importance. “Anybody who has a deaf person in his/her family and can communicate in sign language can claim that they are an interpreter. This is not true. It is tantamount to think that all mother tongue or first language speakers are interpreters. Likewise students who learn sign language up to whatever level and are fluent in signing, should still join an interpreter’s programme,” he said.

“Sign language interpreting is a profession and should be presented as an academic course alongside other spoken languages. The UFS has been taking the lead with sign language and spoken language interpretation and was the first university on the African continent to introduce sign language as an academic course,” he said.

“Although sign language has always been an unknown language to young people it has become quite popular in recent years. This year we had a total of 160 students at the Sign Language Section of the UFS and the numbers seem to increase steadily every year,” he said.

Mr Akach’s assistant, Ms Emily Matabane, is deaf and they communicate in sign language. Ms Matabane also handles the tutorials with students to give them hands-on experience on how to use sign language.

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

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