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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

Louzanne breaks own world record in Switzerland
2017-06-09

Description: Louzanne breaks own world record  Tags: Louzanne breaks own world record

Rufus Botha (left), coach of the athlete Louzanne Coetzee,
went overseas with Coetzee and her guide,
Khothatso Mokone, for a race for the first time.
Coetzee improved her T11 5 000 m world record with more
than 20 seconds in Switzerland.
Photo: Johan Roux

She fought against illness, had to get the green light from medical personnel shortly before her main race, and was very nervous. However, on 5 June 2017, the blind athlete Louzanne Coetzee managed to improve the T11 5 000 m world record with more than 20 seconds.

The Kovsie star’s time of 18:14.27 at the ParAthletics Grand Prix in Nottwil, Switzerland, was approximately 23 seconds faster than her previous world record (18:37.23). In addition, Coetzee, who works at the Institute for Reconciliation and Social Justice at the University of the Free State, also improved the South African T11 800 m record to 2:30.18 on 2 June 2017, and her 4:59.54 on 3 June 2017 in the T11 1 500 m was almost another national record.

Carried by UFS and other support
“One could never be ungrateful when running close to your personal best,” Coetzee said. “Fortunately, with God’s blessing, the support of everybody at home, support from the university, as well as my mom and them, it really was a very blessed and successful event.”

According to her coach, Rufus Botha, Coetzee was not feeling well before the event and had to get medical clearance before the 5 000 m. He told her not to run too hard, even though their goal was 18:20. “She ran an incredible final 600 m, which brought the time down to 18:14,” he said. “It was amazing to watch.”

Botha’s knowledge valuable abroad
He enjoyed going overseas with Coetzee and her guide, Khothatso Mokone, for the first time. “His (Botha’s) experience, knowledge, support, and coaching was extremely valuable,” Coetzee said. “It will definitely help me in future: how to approach things, and everything he shared with us.”

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