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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

Prof. Letticia Moja a winner in her category

2004-08-17

Prof. Moja a finalist in award
'Every member of staff is important to me'

Michelle Cahill - Bloemnuus

IF you are in need of a dose of inspiration, try and get an appointment with Prof. Letticia Moja, the Dean of the Faculty of Health Science at the University of the Free State. It will not be easy as she has an extremely tight schedule, over and above being a finalist in the 2004 Shoprite/Checkers Woman of the Year competition.

Although not a born and bred Free Stater, this dynamic woman has come to love the Free State. "Once you get past the mindset of a small town and all the negatives surrounding it, it is an absolutely wonderful experience," Moja said.

Moja was born in Pretoria and grew up in Garankuwa as the second eldest of five children. "That was nothing special. I was not the eldest and I wasn't the youngest," she quipped. She had two younger brothers, one of whom died in a car accident and then two sisters.

She went to school in Pretoria and her first contact with the Free State was when she wrote her matric at Moroka High School in Thaba Nchu. "That was one of the best schools for us at that time," she says. After completing matric, she went on to study medicine in KwaZulu-Natal.

In 1982 she returned "home" and completed her internship at the Garankuwa Hospital. Hereafter she specialised in gynaecological obstetrics at Medunsa.

She became the head of the gynaecological obstetrics unit and later opened a branch in Pietersburg.

"This was just about the most heart-rending time of my life. You saw people travelling for up to three days just to see a doctor," she says. "Here we really interacted with the community."

In 2001 she was invited by the University of the Free State to apply for the job of vice-dean of the Faculty of Health Science. "I wasn't too keen," she says, "but they kept on calling to find out if I had applied or not," she says with a smile. "Eventually I gave in and was appointed."

She thought she would work a couple of years under Prof. Kerneels Nel, then the dean of the faculty. "Unfortunately that was not to be. I had hoped that I could learn from him," Moja says.

Prof. Nel died of a heart attack in 2003 after which Moja deputised for him before being appointed as dean.

"This brought along a whole newset of challenges," she says, "Now I have to work out budgets and I need to know what human resources are," she jokes. This has prompted her to take up her studies again and she is currently doing her MBA.

"It has certainly been a challenge to go into management and without my support structure I most certainly wouldn't have been able to do it," Moja says.

Moja is actively involved in her church and serves on various committees including the Health Professional Council where she is acting president of the Medical and Dental Board and the Provincial Aids Council.

To her no job is menial. She recalls when she used to have "high tea" with her staff in Gauteng and Limpopo. "One of the cleaning ladies used to think her job was menial. That is just not so. No hospital can do without even the lowest position. Imagine stepping over rubbish while you're trying to catch a baby. To me everybody is important no matter what you do. "

Moja's eldest daughter is studying for her B.Accounting degree at Wits . Her youngest daughter is in Gr. 9 at Eunice and she has also brought along her niece, who is in Gr. 8 at Eunice. "You see, we need to be three girls in the house."
She feels honoured to have been nominated by the institution especially as it is traditionally male-dominated. "It is not about me, but about the support structure. Nobody can do it on their own. It is a team effort."
BLOEMNUUS - VRYDAG 9 JULIE 2004

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