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29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett
Prof Bradley
Prof Bradley Smith tackles the ambiguities surrounding trust misuse during divorce proceedings.

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

Socially inclusive teaching provides solution to Grade 4 literacy challenges
2017-01-23

 Description: Motselisi Malebese Tags: Motselisi Malebese

Mots’elisi Malebese, postdoctoral Fellow of the Faculty
of Education at the University of the Free State (UFS) tackles
Grade 4 literacy challenges.
Photo: Rulanzen Martin

Imagine a teaching approach that inculcates richness of culture and knowledge to individual learners, thus enhancing equity, equality, social justice, freedom, hope and fairness in terms of learning opportunities for all, regardless of learners’ diversity.

This teaching strategy was introduced by Mots’elisi Malebese, postdoctoral Fellow of the Faculty of Education at the University of the Free State (UFS), whose thesis focuses on bringing together different skills, knowledge and expertise in a classroom environment in order to enhance learners’ competence in literacy.

A teaching approach to aid Grade 4 literacy competency
Titled, A Socially Inclusive Teaching Strategy to Respond to Problems of Literacy in a Grade 4 Class, Malebese’s post-doctoral research refers to an approach that improves listening, speaking, reading, writing, technical functioning and critical thinking. Malebese, who obtained her PhD qualification in June this year, says her research confirmed that, currently, Grade 4 is a bottleneck stage, at which learners from a low socio-economic background fall behind in their learning due to the transition from being taught in their home language to English as a medium of instruction.

Malebese, says: “My study, therefore, required practical intervention through participatory action research (PAR) to create conditions that foster space for empowerment.”

PAR indoctrinates a democratic way of living that is equitable, liberating and life-enhancing, by breaking away from traditional teaching methods. It involves forming coalitions with individuals with the least social, cultural and economic power.

Malebese’s thesis was encouraged by previous research that revealed that a lack of readiness for a transitional phase among learners, teachers’ inability to teach literacy efficiently, and poor parental involvement, caused many learners to experience a wide variety of learning barriers.

A co-teaching model was adopted in an effort to create a more socially inclusive classroom. This model involves one teacher providing every learner with the assistance he or she needs to succeed, while another teacher moves around the room and provides assistance to individual learners.

“Learners’ needs are served best by allowing them to demonstrate understanding in a variety of ways, because knowledge is conveyed and accomplished through collaborative work,” Malebese said.

She believes the most important benefit of this model is assuring that learners become teachers of their understanding and experiences through gained knowledge.

Roleplayers get involved using diverse expertise in their field
Teachers, parents and several NGOs played a vital role in Malebese’s study by getting involved in training, sewing and cooking clubs every weekend and during school holidays. English was the medium of teaching and learning in every activity. A lodge, close to the school, offered learners training in mountain biking and hiking. These activities helped learners become tour guides. Storyteller Gcina Mhlophe presented learners with a gift of her latest recorded storytelling CD and books. Every day after school, learners would read, and have drama lessons once a week.

AfriGrow, an organisation that works with communities, the government and the corporate sector to develop sustainable community-driven livelihoods through agricultural and nutrition programmes, provided learners with seedlings, manure and other garden inputs and training on how to start a sustainable food garden. The children were also encouraged to participate in sporting activities like soccer and netball.

“I was aware that I needed a large toolbox of instructional strategies, and had to involve other stakeholders with diverse expertise in their field,” Malebese said.

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