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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

Researcher finds ways to serve justice efficiently

2016-01-07

Prof Monwabisi Ralarala tackled the serving of justice from a linguistic viewpoint.
Photo: Supplied

In 2012, local and international media was saturated with reports of the Eugène Terre’Blanche murder trial. At the judgment, Judge John Horn read a lengthy extensive document, of which three pages were dedicated to voicing his concern about how police officers distort statements in the process of translation. Considering the fact that statements are the entry points to the criminal justice system, Prof Monwabisi Ralarala’s attention was drawn to the negative impact such distortion had insofar as the administration of justice was concerned. Of the three PhD degrees conferred by the University of the Free State (UFS) Faculty of Humanities at the 2015 Summer Graduation, one was in Language Practice with Prof Ralarala’s name on it.

Prof Ralarala’s research interests in language rights, forensic linguistics, and translation studies led him to use the Terre’Blanche trial as the basis for his second PhD case study titled: Implications and explications of police translation of complainants' sworn statements: evidence lost in translation. The doctoral dissertation focused on police stations in the Xhosa-speaking community of Khayelitsha in Cape Town.

Language and the law

When the victim of a crime approaches the South African Police Services (SAPS), the requirements are that a sworn statement be taken. However, as a prerequisite, the narration needs to be translated into English. “The process unfolds in this manner: the complainant or the person laying the charges speaks in a language that they understand, and then the police officers translate that information into English because English is still the de facto language of record,” explained Prof Ralarala.

In the process of translation, the original narrative is lost, and so is some of the evidence. “They [the statements] have to be packaged in a certain way, in the form of a summary. As a police officer, you have to discard all the original narrative and create another narrative which is in English,” added the Associate Professor and Institutional Language Coordinator at the Cape Peninsula University of Technology.

Evidence is the basis of any court case and, when it is translated by police officers who do not hold the credentials of professional translators, a problem inevitably arises.

Because police officers are not trained in translation, “Some of the statements are filled with distortions, changing of information all together. In some cases, one would come across a case which was initially an assault but then - through the change and transformation, re-narration, retelling of the story by someone else - it becomes a case of attempted murder.”

Considering that a statement determines a suspect’s fate, it becomes all the more important to ensure that accuracy is upheld.

His internal and external supervisors, Prof Kobus Marais and Prof Russel Kaschula from the UFS and Rhodes University respectively stated that his PhD work has been hailed as a gem by international scholars. “According to one international assessor, he has made an exceptional contribution to the humanities and social sciences in general and to the fields of linguistics and translation studies in particular.”

Reshaping the landscape

According to Prof Ralarala, there are huge gaps in the translated versions of statements which create a problem when a ruling is made. Some of the recommendations put forward in his dissertation to bridge that gap are:

• to review the language policy insofar as the criminal justice system is concerned. The languages we speak are official and constitutionally embraced, and they hold the same status as English, hence they need to be used in criminal justice processes;
• to revisit the constitution and review if the provisions made for the Nguni languages are implemented;
• to supplement paper and pen with technology such as tape recorders. Statements can be revisited in cases where a controversy arises;
• to deploy professional translators and interpreters at police stations;
• to design a manual for police officers which contains all the techniques on how a statement should be taken.
• to enforce constitutional provisions in order to reinforce the language implementation plan in as far as African languages are concerned .

These recommendations serve to undo or eliminate any perceived injustices perpetuated and institutionalised by current linguistic and formal practices in South Africa's criminal justice system.

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