Latest News Archive

Please select Category, Year, and then Month to display items
Previous Archive
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

Inaugural lecture: Prof. Annette Wilkinson
2008-04-16

A strong plea for a pursuit of “scholarship” in higher education

Prof. Annette Wilkinson of the Centre for Higher Education Studies and Development in the Faculty of the Humanities at the University of the Free State (UFS) made as strong plea for a pursuit of “scholarship” in higher education.

She said in her inaugural lecture that higher education has to deal with changes and demands that necessitate innovative approaches and creative thinking when it concerns effective teaching and learning in a challenging and demanding higher education environment. She referred to a recent research report prepared for the Council for Higher Education (CHE) which spells out the alarming situation regarding attrition rates and graduation output in South African higher education and emphasises factors leading to the situation. These factors include socio-economic conditions and shortcomings in the school and the subsequent under preparedness of a very large proportion of the current student population. However, what is regarded as one of the key factors within the sector’s control is the implementation of strategies for improving graduate output.

She said: “The CHE report expresses concern about academics’ adherence to traditional teaching practices at institutions, which have not changed significantly to make provision for the dramatic increase in diversity since the 1980s.

“Raising the profile of teaching and learning in terms of accountability, recognition and scholarship is essential for successful capacity-building,” she said. “The notion of scholarship, however, brings to the minds of many academics the burden of ‘publish or perish’. In many instances, the pressures to be research-active are draining the value put on teaching. Institutions demand that staff produce research outputs in order to qualify for any of the so-called three Rs – resources, rewards and recognition.

“These have been abundant for research, but scarce when it comes to teaching – with the status of the latter just not on the same level as that of research. From within their demanding teaching environments many lecturers just feel they do not have the time to spend on research because of heavy workloads, that their efforts are under-valued and that they have to strive on the basis of intrinsic rewards.”

She said: “It is an unfortunate situation that educational expertise, in particular on disciplinary level, is not valued, even though in most courses, as in the Programme in Higher Education Studies at the UFS, all applications, whether in assignments, projects or learning material design, are directly applied to the disciplinary context. We work in a challenging environment where the important task of preparing students for tomorrow requires advanced disciplinary together with pedagogical knowledge.”

Prof. Wilkinson argued that a pursuit of the scholarship of teaching and learning holds the potential of not only improving teaching and learning and consequently success rates of students, but also of raising the status of teaching and recognising the immense inputs of lecturers who excel in a very demanding environment. She emphasised that not all teaching staff will progress to the scholarship level or are interested in such an endeavour. She therefore suggested a model in which performance in the area of teaching and learning can be recognised, rewarded and equally valued on three distinct levels, namely the levels of excellence, expertise and scholarship. An important feature of the model is that staff in managerial, administrative and support posts can also be rewarded for their contributions on the different levels for all teaching related work.

Prof. Wilkinson also emphasised the responsibility or rather, accountability, of institutions as a whole, as well as individual staff members, in providing an environment and infrastructure where students can develop to their full potential. She said that in this environment the development of the proficiency of staff members towards the levels of excellence, expertise and scholarship must be regarded as a priority.

“If we want to improve students’ success rates the institution should not be satisfied with the involvement in professional development opportunities by a small minority, but should set it as a requirement for all teaching staff, in particular on entry into the profession and for promotion purposes. An innovative approach towards a system of continuous professional development, valued and sought after, should be considered and built into the institutional performance management system.”

As an example of what can be achieved, Prof. Wilkinson highlighted the work of one of the most successful student support programmes at the UFS, namely the Career Preparation Programme (CPP), implemented fourteen years ago, bringing opportunities to thousands of students without matric exemption. The programme is characterised by dedicated staff, a challenging resource-based approach and foundational courses addressing various forms of under preparedness. Since 1993 3 422 students gained entry into UFS degree programmes after successfully completing the CPP; since 1996 1 014 of these students obtained their degrees, 95 got their honours degrees, 18 their master’s degrees and six successfully completed their studies as medical doctors.

Prof. Wilkinson said: “I believe we have the structures and the potential to become a leading teaching-learning university and region, where excellence, expertise and scholarship are recognised, honoured and rewarded.”

 

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept