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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

NRF researcher addresses racial debates in classrooms

2017-03-24

Description: Dr Marthinus Conradie Tags: Dr Marthinus Conradie

Dr Marthinus Conradie, senior lecturer in the
Department of English, is one of 31 newly-rated National
Research Foundation researchers at the University of
the Free State.
Photo: Rulanzen Martin

Exploring numerous norms and assumptions that impede the investigation of racism and racial inequalities in university classrooms, was central to the scope of the research conducted by Dr Marthinus Conradie, a newly Y-rated National Research Foundation (NRF) researcher.

Support from various colleagues
He is one of 31 newly-rated researchers at the University of the Free State (UFS) and joins the 150 plus researchers at the university who have been rated by the NRF. Dr Conradie specialises in sociolinguistics and cultural studies in the UFS Department of English. “Most of the publications that earned the NRF rating are aimed to contributing a critical race theoretic angle to longstanding debates about how questions surrounding race and racism are raised in classroom contexts,” he said.

Dr Conradie says he is grateful for the support from his colleagues in the Department of English, as well as other members of the Faculty of the Humanities. “Although the NRF rating is assigned to a single person, it is undoubtedly the result of support from a wide range of colleagues, including co-authors Dr Susan Brokensha, Prof Angelique van Niekerk, and Dr Mariza Brooks, as well as our Head of Department, Prof Helene Strauss,” he said.

Should debate be free of emotion?
His ongoing research has not been assigned a title yet, as he and his co-author does not assign titles prior to drafting the final manuscript. “Most, but not all, of the publications included in my application to the NRF draw from discourse analysis of a Foucauldian branch, including discursive psychology,” Dr Conradie says. His research aims to suggest directions and methods for exploring issues about race, racism, and racial equality relating to classroom debates. One thread of this body of work deals with the assumption that classroom debates must exclude emotions. Squandering opportunities to investigate the nature and sources of the emotions provoked by critical literature, might obstruct the discussion of personal histories and experiences of discrimination. “Equally, the demand that educators should control conversations to avoid discomfort might prevent in-depth treatment of broader, structural inequalities that go beyond individual prejudice,” Dr Conradie said. A second stream of research speaks to media representations and cultural capital in advertising discourse. A key example examines the way art from European and American origins are used to imbue commercial brands with connotations of excellence and exclusivity, while references to Africa serve to invoke colonial images of unspoiled landscapes.

A hope to inspire further research
Dr Conradie is hopeful that fellow academics will refine and/or alter the methods he employed, and that they will expand, reinterpret, and challenge his findings with increasing relevance to contemporary concerns, such as the drive towards decolonisation. “When I initially launched the research project (with significant aid from highly accomplished co-authors), the catalogue of existing scholarly works lacked investigations along the particular avenues I aimed to address.”

Dr Conradie said that his future research projects will be shaped by the scholarly and wider social influences he looks to as signposts and from which he hopes to gain guidelines about specific issues in the South African society to which he can make a fruitful contribution.

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