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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 awards honorary doctorate to global peace ambassador Dr Lakhdar Brahimi

2015-07-07

Professor Heidi Hudson, Director of the Centre for Africa Studies at the UFS and Dr Lakhdar Brahimi.
Photo: Mike Rose from Mike Rose Photography

The Faculty of the Humanities and Centre for Africa Studies rewarded the contributions of Dr Lakhdar Brahimi, a prominent global peace leader, with an honorary doctorate on Thursday 2 July 2015.

The conferment formed one of the highlights of the 2015 Winter Graduations. Dr Brahimi’s work as a United Nations’ (UN) envoy, and African peace leader of note, was deeply respected by the university. Professor Heidi Hudson, Director of the Centre for Africa Studies at the UFS, accepted the PhD on his behalf.

In his acceptance speech, read by Prof Hudson at the Chancellor’s Dinner the same evening, Dr Brahimi expressed his gratitude to the university. “I deeply appreciate your generous recognition, and even now, in the twilight years of my life, I shall try to be worthy of your confidence in everything I say or do.”

“My generation did its share: its successes and its failures are things of the past. We must accept to be judged by you, the graduates. You, the young graduates here at the University of the Free State, and your fellow members of the African intellectual elite, have an exciting opportunity to take on the challenges and fulfil the dreams you have. We must accept to be judged by you.”

Algerian-born Dr Brahimi was first involved with the UN in 1992 as rapporteur to the Earth Summit. Distinctively, he is the most-frequently appointed special envoy of the UN. Amongst many other countries, he has worked as a mediator for South Africa, Haiti, Afghanistan, Iraq, Syria, Democratic Republic of Congo, Cameroon, Burundi, Angola, Liberia, Nigeria, Sudan, and Côte d’Ivoire on behalf of the UN.

Significant peacekeeping efforts in South Africa (1993- 1994)

The ambassador– in his capacity as special representative to South Africa from December 1993 to June 1994 –played a direct role in South Africa’s democratic transition.

Prof Hudson expressed appreciation for the ambassador’s role in facilitating a peaceful transition from South Africa’s Nationalist government into the current democratic dispensation.

“One of the reasons we selected him as recipient of the honorary doctorate, is because of what he did for the African continent,” she said.

In addition, she commented Dr Brahimi for being a living testament of Ubuntu. “He has displayed an ethic of humanism in everything that he has done, in the way that he has mediated in certain conflicts - his main contribution is as a mediator.

According to Hudson, his humility, modesty, and generosity are the epitome of Ubuntu which states that “I am because we are.”

Dr Brahimi as a global peace practitioner

Dr Brahimi served as Undersecretary-General of the Arab League, Arab League Special Envoy for Lebanon, and Foreign Minister of Algeria.

The UN Peace-building Commission was established as a result of recommendations in his2000 Report of the Panel on United Nations Peace Operations (Brahimi Report).

Since 2007, Dr Brahimi has been a member in The Elders - an alliance chaired by Kofi Annan -of peace and human rights advocates including Desmond Tutu, Graça Machel, Mary Robinson, and Jimmy Carter. His passion for justice led to his membership in the Commission on Legal Empowerment of the Poor.

In 2010, he was Laureate of the Special Jury Prize for Conflict Prevention, awarded by the Chirac Foundation (France), which promotes international peace and security.

Dr Brahimi’s influence in Peace Education

The Brahimi Report has had an indelible impact on scholars specialising in the broad field of peace operations. Dr Brahimi’s writings have also contributed to knowledge on post-conflict reconstruction and development (PCRD), a signification part of the African Union’s narrative.

He is a distinguished senior fellow at the Centre for the Study of Global Governance at the London School of Economics. He has taught a postgraduate course on Conflict Resolution at Sciences Po, Paris (2011); is Andrew D. White Professor-at-Large at Cornell University; and is affiliated to the Institute for Advanced Studies at Princeton, where he was a visiting professor from 2006 to 2008.

In addition, Dr Brahimi is a founding member of the French-language Journal of Palestine Studies, and a board member of the Stockholm International Peace Research Institute.

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