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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

Moshoeshoe Memorial Lecture to focus on Leadership challenges

2006-03-27

Lecture to focus on Leadership challenges

n Thursday 25 May 2006 – Africa Day – the University of the Free State (UFS) will host the inaugural King Moshoeshoe Memorial Lecture in honour of this great African leader and nation-builder.

Prof Njabulo Ndebele, internationally renowned writer and academic, and Vice-Chancellor of the University of Cape Town (UCT), will deliver the inaugural lecture at the Main Campus in Bloemfontein on the topic: Reflections on the Leadership Challenges in South Africa.

“I see the lecture as part of a larger debate on leadership models, particularly the concept of African leadership, as well as the ongoing discourse about nation-building and reconciliation,” says Prof Frederick Fourie, Rector and Vice-Chancellor of the UFS.

According to Prof Fourie, the Moshoeshoe project was launched at the UFS in 2004 to coincide with South Africa’s first decade of democracy and was part of the University’s centenary celebrations, having been founded in 1904.

“Through this project the UFS seeks to honour a great African leader and demonstrate our commitment to transformation so as to create a truly inclusive and non-racial university,” said Prof Fourie.

“As the founder of the Basotho nation, King Moshoeshoe is widely credited for his exceptional style of leadership, displaying the characteristics of diplomacy, reconciliation and peaceful co-existence in his efforts to unite diverse groups into one nation,” said Prof Fourie.

As part of its ongoing Moshoeshoe project, the UFS commissioned a television documentary programme on the life and legacy of King Moshoeshoe. This was completed in 2004 and broadcast on SABC 2 later that year.

For further information, Me Tumi Tabane can be contacted at (051) 401-2828 or tabaneme.stg@mail.uovs.ac.za.

Abridged curriculum vitae of Njabulo S Ndebele

Professor Njabulo S Ndebele is currently Vice-Chancellor and Principal of UCT.

Njabulo Ndebele began his term of office at UCT in July 2000, following tenure as a scholar in residence at the Ford Foundation’s headquarters in New York. He joined the Foundation in September 1998, immediately after a five-year term of office as Vice-Chancellor and Principal of the University of the North in Sovenga, at the then Northern Province. Previously he served as Vice-Rector of the University of the Western Cape. Earlier positions include Chair of the Department of African Literature at the University of the Witwatersrand; and Pro-Vice-Chancellor, Dean, and Head of the English Department at the National University of Lesotho.

An established author, Njabulo Ndebele recently published a novel The Cry of Winnie Mandela to critical acclaim. An earlier publication Fools and Other Stories won the Noma Award, Africa’s highest literary award for the best book published in Africa in 1984. His highly influential essays on South African literature and culture were published in a collection Rediscovery of the Ordinary.

Njabulo Ndebele served as President of the Congress of South African Writers for many years. As a public figure he is known for his incisive insights in commentaries on a range of public issues in South Africa. He holds honorary doctorates from Universities in the Netherlands, Japan, South Africa and the United States of America. He is also a Fellow of UCT.

Njabulo Ndebele is also a key figure in South African higher education. He has served as Chair of the South African Universities Vice-Chancellor’s Association from 2002-2005, and served on the Executive Board of the Association of African Universities since 2001. He has done public service in South Africa in the areas of broadcasting policy, school curriculum in history, and more recently as chair of a government commission on the development and use of African languages as media of instruction in South African higher education. He recently became President of the Association of the AAU and Chair of the Southern African Regional Universities Association (SARUA).

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
26 March 2006

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