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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 Communication and Brand Management receives two prestigious international awards

2015-07-07

Lelanie de Wet, Lacea Loader and Leonie Bolleurs

The Department of Communication and Brand Management at the University of the Free State (UFS) received two of the six Gold Quill Awards – that were awarded to South African companies and institutions - at the International Association of Business Communicator’s (IABC) Excellence Gala ceremony in San Francisco, US on 15 June 2015.

The awards ceremony formed part of the 2015 IABC World Conference, which took place from 14-17 June 2015. The department received a Gold Quill Excellence Award for its social media campaign, UFS #FaceOfFacebook and a Gold Quill Merit Award for the B Safe Take Action campaign.

From the 15 countries that entered, a total of 120 Gold Quill Excellence awards and 189 Gold Quill Merit awards were awarded. Other South African award winners included Barclays Africa Group Limited, Mediclinic and the Cape Peninsula University of Technology (CPUT).

This is the second year in a row that the UFS has been recognised by the IABC for its communication projects. In 2014, the department was awarded the Jake Wittmer Research Award for a Stakeholder Perception Audit conducted in February 2014. The audit was considered – by the IABC - as one of the best breakthrough strategies used by a university to measure the perceptions of its stakeholders.This made the UFS the first tertiary institution in Africa to receive the research award. The stakeholder perception audit also received an Africa Gold Quill in 2014.

"Being recognised by a global association such as the IABC for the second time, is a great honour and I am very proud of what my colleagues have achieved by entering the two campaigns. Winning the awards is a true indication of what can be done when a team of expert communicators is committed towards engaging their target audiences with campaigns that speak of quality and innovation. The fact that the UFS is one of only two tertiary education institutions in the country to receive these prestigious awards, makes it even more special," said Lacea Loader, Director: Communication and Brand Management at the UFS.

IABC World and Africa conferences 2015

The IABC is a global membership association with a network of 12 000 members in more than 80 countries, representing many of the Global Fortune 500 companies. It serves professionals in the field of business communication, bringing together the profession’s collective disciplines.

With the theme: Changing landscape: Informing the future, the 2015 world conference was attended by over 1 200 delegates from across the world. Delegates were offered an opportunity for learning, discovering, and connecting. Loader also made a presentation entitled ‘Award-winning measurement endorses sound reputation management strategy’ at the world conference.

The department will also be receiving two Africa Gold Quill Awards from the Africa chapter of the IABC for the same campaigns on 30 July 2015 in Johannesburg.

UFS #FaceOfFacebook Campaign

The university received a Gold Quill Excellence Award for its social media campaign, UFS #FaceOfFacebook. This initiative originated in the university’s commitment to its Human Project, which sets the standard for good behaviour and care.

Lelanie de Wet, Manager: Social Media and Website Content and project leader of UFS #FaceOfFacebook, said the project was born from the need to communicate with students. Thus a virtual friend, #FaceOfFacebook, was created. “Yearly auditions are being held to choose the new face representing the UFS on Facebook. Short video clips of the #FaceOfFacebook – whether it is attending events or communicating important messages - are posted on the UFS Facebook page. The successful candidate holds the title #FaceOfFacebook for 12 months.

“When I look at a campaign such as #FaceOfFacebook, from the time it took its first tentative steps in 2013, and see how it inspired staff and students alike, my heart swells with pride. Often you can see the impact you have made only in retrospect. The ripples you send into the world will inevitably create waves,” she said.

B Safe Take Action Campaign

The B Safe Take Action campaign of the university received a Gold Quill Merit award from the IABC.

The campaign was activated in September 2013. “It targeted on- and off-campus students and staff, aiming to create social ownership of personal safety, and to raise awareness of the safety measures put in place by the university,” said Leonie Bolleurs, Manager: Internal Communication and project manager of the campaign.

The campaign looked at a number of safety aspects, focusing not only on crime but also on being safe from road accidents and stress/burnout.

It is the second time this year that the BSafe campaign has been recognised for its innovative strategy. Earlier this year it received a PRISM Award (Gold) from the Public Relations Institute of Southern Africa (PRISA). The annual PRISM Awards are about recognising and celebrating great public relations campaigns.

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