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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

UFS Council unanimously reappoints Dr Khotso Mokhele as Chancellor

2015-04-02

Dr Khotso Mokhele, Chancellor of the University of the Free State

The Council of the University of the Free State (UFS) unanimously reappointed Dr Khotso Mokhele as Chancellor during its quarterly meeting held on 13 March 2015. He was first appointed in this portfolio by the Council on 4 June 2010.

“It is an honour for the Council to reappoint someone of this stature as Chancellor of the UFS. With his solid academic background and high profile in the business world, Dr Mokhele has been a great asset to the UFS. On behalf of the Council and the university community, I extend a word of appreciation for the work he has done during his first term as Chancellor of the UFS. He is an exceptional leader, and the university community is looking forward to have him as Chancellor for a second term,” said Judge Ian van der Merwe, Chairperson of the UFS Council.

Dr Mokhele was awarded a BSc Agriculture from Fort Hare University, and continued his studies at the University of California Davis (USA) on the Fulbright-Hays Scholarship Programme, completing his MSc (Food Science) and PhD (Microbiology). He was subsequently a postdoctoral fellow at Johns Hopkins University School of Medicine (USA) and the University of Pennsylvania School of Medicine (USA). Dr Mokhele is the recipient of honorary doctorates from nine South African universities including the UFS, and from Rutgers University in the USA.

He was Chairman of the Rhodes Scholarship Selection Committee for Botswana, Malawi, Namibia, Lesotho and Swaziland (2007-2011), and served on the South Africa at Large Rhodes Scholarship Selection Committee for more than 10 years. As President and Chief Executive Officer (CEO) of the Foundation for Research Development (1996-1999) and the NRF from 1999 to 2006, Dr Mokhele played a central role in providing visionary and strategic direction to the South African science system. He was the Founder President of the Academy of Science of South Africa (ASSAf), Founder President and CEO of the National Research Foundation (NRF), Chairperson of the Economic Advisory Council to the Premier of the Free State (2001-2004), and a member of the Advisory Council on Innovation to the Minister of Science and Technology (2003-2007). His role in securing government and international support for the Southern African Large Telescope Project (SALT) is evidence of his dedication to science in South Africa. The success of this project laid the basis for South Africa being selected to host more than 70% of the Square Kilometre Array, an international mega telescope for radio astronomy.

In recognition of his contribution to the development of science, he was the recipient of the Technology Top 100 Lifetime Achievers Award in 2009 and the National Science and Technology Forum Award in 2005. His role in science is recognised internationally. He was an elected Vice-President: Scientific Planning and Review of the International Council for Science and Chairperson of its Committee for Scientific Planning and Review (2005-2008) as well as a member of the Committee on Developing and Transition Economy Countries of the International Social Science Council (2008-2010). He also represented South Africa on the executive board of UNESCO, and was awarded the Member Legion of Honour of the Republic of France for his work in strengthening scientific ties between South Africa and France.

Dr Mokhele currently serves as Special Advisor to the Minister of Science and Technology, the Honourable Naledi Pandor. His current corporate positions include: Non-Executive Chairman: Board of Directors, Impala Platinum Holdings Ltd (Implats); Lead Independent Non-Executive Director: African Oxygen Ltd (Afrox); Non-Executive Director of Zimbabwe Platinum Holdings Ltd (Zimplats); Hans Merensky Holdings Ltd; and Tiger Brands Ltd. He is the President of the Hans Merensky Foundation (South Africa) and a Trustee of SciDev.Net (a web-based scientific magazine based in London, UK) and Start International Inc (USA).

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