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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

New South African literature festival offers something for everyone

2016-03-23

The University of the Free State (UFS) in partnership with the Vrystaat Arts Festival is proud to present the first literature festival in central South Africa from 11-16 July in Bloemfontein. Afrikaans books and writers will feature prominently, in addition to other indigenous languages such as Sotho and Zulu. Several authors will be celebrating literature in English.

Vice-Chancellor and Rector of the University of the Free State Professor Jonathan Jansen says: ‘The aim of the festival, part of the bigger Vrystaat Arts Festival, is to strengthen a culture of reading, not just in the Free State but nationally. The festival will market books as well as embrace new developments in the field of writing. I am incredibly excited about this inaugural event, which the university will support in the long-term.’

The theme of this year’s literature festival is ‘Our Africa’ and promises to provide all booklovers and readers tantalizing food for thought. Some of the authors attending the festival include, amongst others, the Hertzog-prize winner Adam Small, celebrating his 80th birthday as well as the release of his latest drama. Another legendary writer, dramaturge and actor, John Kani, will be speaking at the festival about his most recent theatre productions. The ever popular Marita van der Vyver will be visiting the festival from France, and the highly acclaimed writer Zakes Mda, will be flying in from the United States to deliver the inaugural Sol Plaatje Lecture. Mda, also a visual artist, will have some of his works on display.

Other international guests include Chika Unigwe, originally from Nigeria, who rose to fame in Belgium, and was described by South African writer Zukiswa Wanner as one of the five most renowned writers from Africa. Also attending will be Iranian writer Kader Abdolah, whose novels have been translated into more than 21 languages. Abdolah, a political refugee who escaped from Iran to the Netherlands in the 1980s, went on to establish himself as one of the most prominent Dutch novelists. Wilfried N’Sondé, originally from the Congo, who now lives in France, will also be a festival guest.

Theo Kemp, Coordinator of the Literature Festival says: ‘It is critical for us that robust debates on current affairs takes place as part of the festival. Festival participants will be able to engage with a range of authors on topical and sometimes sensitive issues. We welcome this debate – it is rare to have a platform where we can argue passionately yet respectfully about the future of our country in an international context.’

Critical topics covered include themes such as the state of Africa’s economies (with analyst and writer Victor Kgomoeswana); the relevance of the Anglo-Boer War in contemporary society (with Albert Blake and Johan Kruger); philosopher Achille Mbembe talking with Kevin Bloom and Richard Poplak about the changing face of Africa; and the political analysts Susan Booysen and John Matisonn examining the South African landscape in a post-municipal election environment.

Theuns Eloff, previous Rector of the University of Potchefstroom, whose new book What now, South Africa is launched this year, will partake in discussions around current affairs. So to Melanie Verwoerd and Sonwabiso Ngcowa aim to explore the phenomenon of the so-called ‘born frees’ in their book 21 at 21: The Coming of Age of A Nation.

Climate change and its impact on the Free State’s environment is another critical topic covered by Bob and Mary Schole with their book launch of Climate Change: Briefings from Southern Africa.

Festival goers can also look forward to a poetry café, where music and poetry will be mixed; informal visits with writers around food and story telling; as well as word and music productions where popular travel writers such as Johan Bakkes, Dana Snyman, Erns Grundling and Pienkes du Plessis will be present.

Writers will also be involved in a range of panel discussions – including on the ethics of writing biographies (Lindie Koorts and Mark Gevisser); alternative narratives of South Africa in the eighties (Ivan Vladislavic and Johann Roussouw); and discussions with writers such as Hans du Plessis, Bernard Odendaal, Hanlie Retief, Rudie van Rensburg and Irma Joubert.

Workshops will also feature in the programme with writers such as Francois Smith and Henning Pieterse, associated with the Department of Afrikaans and Dutch at the UFS, offering short courses on creative writing; while Johann Roussouw from the Department of Philosophy at the UFS will present a series of talks on the books of Karel Schoeman.

The final festival programme will be launched on 28 April 2016.

The Vrystaat Literature Festival was initiated by the University of the Free State in partnership with the Vrystaat Arts Festival. Project sponsors include Media24, ATKV, Vlaamse Letterenfonds, Institut Francais, Nederlandse Letterfonds, Van Rensburg Pataloe and the Flemish Embassy.

For further enquiries contact:
Theo Kemp
theo.kemp@volksblad.com
+27(0)83 462 9613
www.vrystaatartsfestival.co.za

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