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29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett
Prof Bradley
Prof Bradley Smith tackles the ambiguities surrounding trust misuse during divorce proceedings.

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

“You cannot find Ubuntu in a culture of dominance” – Dr Mamphela Ramphele during second Leah Tutu Gender Symposium
2015-02-28

 

From the left are: Samantha van Schalkwyk, Zanele Mbeki, Prof Pumla Gobodo-Madikizela and Dr Mamphela Ramphele.
Photo: Johan Roux

 

Video message from Mrs Leah Tutu

Session 1: Keynote address by Dr Mamphela Ramphele
Ndiyindoda! Yes, you are a man 

Session 2: Professor Robert Morrell from the University of Cape Town
South African Gender Studies: Setting the context

Session 3: How can we engage young men to act against violence against women?
Panel discussion by Lisa Vetten (Wits Institute for Social and Economic Research), Despina Learmonth (Psychology Department, University of Cape Town) and Wessel van den Berg (Sonke Gender Justice) 

Session 4: Professor Pumla Gobodo-Madikizela
Self-defence as a strategy for women’s resistance: Reflections on the work of Susan Brison
 

Engaging men to act against gender-based violence in the Southern African context.

This was the theme of the second International Leah Tutu Symposium, hosted by the Gender Initiative of Trauma, Forgiveness and Reconciliation Studies of the University of the Free State (UFS) on Tuesday 24 February 2015.

What does it mean to be man? How can men become active in the fight against gender-based violence? And when does one say: enough is enough? Questions like these set the tone as highly-respected individuals such as Dr Mamphela Ramphele, Prof Rob Morrell, Lisa Vetten and Andy Kawa took to the stage in the Odeion on the Bloemfontein Campus.

Leah Tutu
Unfortunately, Mrs Leah Tutu could not attend this year’s event, but she still managed to send sparks of wit and insight into the auditorium. In her video message, Mrs Tutu referred to the fact that our country has “consigned discriminatory legislation to the rubbish bin of the past”, but we continue to inhabit a divided society.

“We have a constitution and bill of rights that should have sounded the death knell for patriarchy. But women are unsafe across the land,” Mrs Tutu said. “Our freedom cost too much to be left out in the rain,” she urged.

Ndiyindoda! Yes, you are a man
In Dr Ramphele’s keynote address, “Ndiyindoda! Yes, you are a man”, she scrutinised the dominant masculinity model that has supported an alpha-male mentality for millennia. A mentality that celebrates dominance, power and control – where the winner takes it all. How then, can we expect our young boys to embrace the value system of a human rights culture?

“Gender equality is at the heart of our constitutional democratic values. Yet, our society continues to privilege and celebrate the alpha male as a masculinity model,” Dr Ramphele said. This dissonance can only produce conflict and violence.

We encourage our young men to be gentle, communicative, caring people who show their emotions. And when they do, what do we as women do? Do we encourage them?

“Or do we join those who call them wimps, moffies, sissies? How do we respond when they are ridiculed?” Dr Ramphele asked. Are we, as mothers, fathers and grandparents willing to socialise our children to acknowledge a diversity of masculinities as equally valid in our society?

The new man and the new woman of the 21st century need to be liberated from the conflict-ridden dominant masculinity model. They need to be able to shape their identity in line with a value system of human rights as enshrined in our constitution.

Perhaps Dr Ramphele’s message could be summed up by one sentence: You cannot find Ubuntu in a culture of dominance.

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