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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

Wayde sets 200m SA record, and is world’s fastest in 2017
2017-06-13

 

Description: Wayde sets 200m SA record, banner Tags: Wayde sets 200m SA record, banner

Wayde van Niekerk is in great form leading up to the World Championships
in London in August. Photo: SASPA

 

He was the first South African to break the 20-second barrier in the 200m, but for the past two years Wayde van Niekerk had to be satisfied that fellow countryman Anaso Jobodwana was quicker. Now the Kovsie athlete isn’t only the national record holder again – he also is the fastest man on the planet in the 200m in 2017.

After Van Niekerk ran a 19.90, the world’s fastest this year, when he won the South African title in Potchefstroom in April, the American Christian Coleman (19.85) improved on that.

Personal best and 0.06 seconds quicker than Anaso
However, Van Niekerk ran a 19.84 in the 200m at the Racers Grand Prix in Kingston, Jamaica, on 11 June 2017. This was 0.06 seconds quicker than his personal best, and 0.03 seconds better than Jobodwana’s national record of 19.87 at the 2015 World Championships in Beijing. Van Niekerk was the first South African to run under 20 seconds in the 200m when he did so two years ago in 19.97 in Lucerne, Switzerland.

Same pace a second time in a week

It was also the second time in a week that the 400m world record-holder ran an 19.84 in the 200m. This after he did it on a temporary built track at the Boost Boston Games on 4 June 2017. The race was run on a straight street course and was therefore not officially recognised as a record.

“This is definitely a positive step forward,” Van Niekerk said, according to www.iaaf.org. “I felt that I was in pretty good shape last week in Boston, I wanted to repeat that here (in Kingston).”

He seems to be in good shape leading up to his attempt to run a double, his favourite 400m and the 200m, at the World Championships in London, England, in August.


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